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AN AGING FATHER



Moe passed away at the age of ninety-two-years-old and is survived by his eldest daughter Stacy, and two sons, Abie and Joey. After her father’s passing, Stacy presented her brothers with a Last Will and Testament signed by her father back in April 2007. The will clearly instructed that the estate, valued at approximately 6 million dollars, was to be divided by his children into three equal parts. However, her brothers produced a subsequent will signed by their father in 2015, which allocated 90% of the estate to be divided between them, leaving only 10% for Stacy. Stacy bitterly contested the will signed in 2015 claiming that her father lacked the mental capacity to make a will at that stage of his life. In Bet Din, Stacy claimed that her aging father was senile at the age of 92, and rarely conversed with even his family members for over a year. She further argued that the drastic change in her percentage from the will signed in 2007 is an indication that her brothers manipulated their father into signing it. Since her father did not have a coherent understanding of the document’s content, she asserted that it be rendered null and void. Abie and Joey defended their position by objecting to the claim that their father was senile. They agreed that their father was unusually silent in his last years, but they explained that it was primarily due to physical weakness caused by his advanced age. In explanation of the drastic change in their sister’s percentage, they counter-claimed that their father initiated the decrease after their wholesale business suffered recent financial setbacks. Stacy mocked her brothers’ defense and reiterated that her father was incapable of making a will, and he surely did not have the capacity to initiate a decrease in her percentage for the sake of her brothers’ wholesale business.

How should the Bet Din rule, in favor of Stacy or her brothers, and why?

TORAH LAW

According to the ruling of the Shulhan Aruch, in instances in which a clinically insane person attempts to complete a transaction to buy, sell, or give a gift, the transaction is rendered null and void. Leading halachic authorities detail the criterion required before determining a person is clinically insane. However, ultimately a panel of three Judges will need to do the evaluation and review the medical history of the patient.

The above ruling is not applicable in instances in which a person is merely lacking the capacity to function normally due to age or illness. Slowness or other symptoms indicating that a person’s mind is inadequate are not necessarily grounds to nullify a transaction. Furthermore, quite often even people who suffer from an illness which severely damages their mental capacity can experience moments of clarity. A transaction or a last will and testament is considered valid and binding if it was officiated while the person’s mind was lucid at the moment.

Additionally, a person with a limited mental capacity differs from one who is clinically insane, in that the insane person is immediately disqualified from all areas of interaction due to the severity of his condition, while a person with a limited mental capacity may be tested for eligibility to complete a transaction. It is possible that in select subject matters even a person generally incompetent has sufficient mental capacity. Hence, a last will and testament signed by an elder who recognizes his children may be viewed as a binding transaction. It is, however, the responsibility of the witnesses signing the will to determine that the testator (a person who has made a will) has sufficient mental capacity to distribute his assets at that time. If however, a testator has a mental illness which prevents him from recognizing his children, he is halachically not qualified to dispose of his assets. Nevertheless, in all instances a Bet Din will evaluate the specifics of the case at hand before submitting a ruling with regard to the validity of a will.

Leading halachic authorities rule that unless proven otherwise, a will submitted by an heir is assumed to be valid, and that the testator had the mental capacity required. This assumption is further confirmed by the witnesses that signed the will, thereby attesting to its validity. Hence, those who contest a will for lack of testamentary capacity must typically show that the decedent (the deceased person who wrote the will) suffered from mental unsoundness that left him unable to remember family members or the like.

Contemporary halachic authorities discuss the regulations required for changing a will. Unfortunately, when some people decide to change a will, they would rather not pay a competent expert to do it properly. They prefer to do it themselves by marking up the original, writing in their changes, and crossing out what they choose to omit. Such action is likely to create legal and halachic concerns. As a general rule, the original will, and its revocation in place of a new version, must be written up by an expert.

VERDICT Old Vintage

Our Bet Din awarded Abie and Joey 90% of their father’s estate, valued at five million four hundred thousand dollars, leaving their sister Stacy with the 10% balance, valued at six hundred thousand dollars. Although her father Moe had slowed down in his final years and was barely talking, according to Torah law this is not necessarily grounds to nullify the will he signed in 2015. Stacy confirmed to the Bet Din that her father indeed recognized his children. Hence, it is unlikely that he suffered from a severe case of senility. Additionally, according to a number of witnesses, there were times when Moe had a resurgence of energy, and it is quite possible that he fully considered the financial setback of their wholesale business, and therefore revoked the original will. Stacy was unable to prove that her father did not have the mental capacity to execute a will. When contesting a will for lack of testamentary capacity, the contester must prove that the deceased was mentally incapable of executing a will. Our Bet Din reviewed both the original will written in 2007 and the subsequent will written in 2015, and determined that Moe was legally entitled to revoke the original.  After we submitted the verdict to the family, our Bet Din encouraged the siblings to maintain a peaceful relationship.