The Validity of a Will Drafted Only in Accordance with Civil Law

In this article we will discuss the law concerning a will that is not valid according to halachah but is valid in civil courts: whether, from a halachic perspective, it is binding; and even if it is not binding halachically, whether the heirs are obligated to fulfill it under the principle of the mitzvah to fulfill the words of the deceased.

   The views of the poskim regarding wills made in civil courts throughout the generations

The first will made in a court of law about which the great poskim disagreed was a will made in Venice at the beginning of the 5300s. The leading sages of that generation disputed it: the Maharī ben Lev (Responsa, vol. 1, sec. 61), Maharshdam (Responsa, Choshen Mishpat, sec. 304), the Radbaz (secs. 544–545), and Avkat Rochel (sec. 77). In later generations as well, the great poskim disagreed on this matter [and this is brought at great length in Mishpat HaTzava’ah, regarding all types of wills throughout the generations, and the disputes among the leading sages of their respective eras].

The sources of the law and the approach of the poskim

The Shulchan Aruch (Choshen Mishpat 253:33) rules that testamentary documents issued in non-Jewish courts are valid. The Sma (s.k. 72) explains that the source is the Rosh (Responsa, rule 18, sec. 3), and there it is clear that the case concerns one who gives instructions because of impending death, where no kinyan is required and the document serves only as proof; for that purpose a document of the courts is valid. But where there is no status of one who gives instructions because of impending death and no kinyan was made, the document is merely a shard, i.e., of no legal value. So too it is ruled in the Rema (sec. 68:1) that a document made according to their laws but not written according to Torah law is valid. On this basis, the Minchat Yitzchak (Responsa, vol. 6, sec. 165) ruled that testamentary documents made by them, which contain no kinyan according to Torah law, have no value according to the holy Torah.

In Igrot Moshe (Responsa, Even HaEzer, vol. 1, sec. 104), he discusses a woman who wrote a will to give her money to charity after her death, without any kinyan being made. He innovates that a will effective under civil law, even if it is not effective under Torah law, may be used to collect, since the entire reason a kinyan and the phrase “from now” are needed is to demonstrate full resolve regarding the will itself; and wherever this will is effective under the law, one may say that there is no greater proof of resolve than that, and therefore it is effective even without a kinyan.

The view of the Achiezer

The view of the Achiezer is well known (vol. 3, sec. 34; vol. 4, sec. 66). He wrote: “Already long ago I tended to say that where the deceased commanded that something be given to him, he is deemed to be in possession by virtue of dina de-malkhuta, for the fulfillment of the will through the courts does not require that it have been deposited with a third party from the outset for that purpose; however, I have not found a clear source for this law.”

It is clear from his words that he innovates that when the will is valid according to the law of the courts, it is as though it had been deposited with a third party, and we say regarding it that there is a mitzvah to fulfill the words of the deceased. In part 4 he writes to explain the practice of the rabbinical courts in his time to give effect to wills that were not made according to Torah law through a kinyan during the person’s lifetime.

The dispute between the Maharīa HaLevi and the Minchat Shai

The Maharīa HaLevi and the Minchat Shai already disagreed about this in connection with the famous will of the holy Gaon of Sadigura, who divided his money among his sons, daughters, and granddaughters, and there was no lifetime transfer in the will at all; he only wrote: “I am confident in the righteousness of my sons, shlita, that they will carry out my will without any change, as their father desires.”

The Minchat Shai (sec. 75) innovates that since the will states that a share is to be given to his daughter, and the will was not made according to halachah, nevertheless, since according to the law of the courts a daughter inherits like a son, it is considered as though it had been deposited in her hand, and we again say that there is a mitzvah to fulfill the words of the deceased.

But the Maharīa HaLevi (vol. 2, sec. 86) rejected his words and wrote that since it is forbidden to turn to the courts and extract money not according to Torah law, how could this be considered as deposited with a third party? Especially regarding a great and holy person, certainly one cannot say that it is considered deposited on account of the judicial system of the courts, which is entirely forbidden. However, he wrote that if they fulfill the will, they fulfill the mitzvah of honoring one’s father. [See Chatam Sofer (Responsa, Choshen Mishpat, sec. 142), who also holds regarding a will made in the courts that the will does not remove the husband’s inheritance through the law of the mitzvah to fulfill the words of the deceased.]

The view of Maran Rabbi Yosef Shalom Elyashiv zatzal

In Kovetz Teshuvot (vol. 3, sec. 225), after citing the dispute between the Minchat Shai and the Maharīa HaLevi, he wrote that the Minchat Shai (sec. 79) stated that the Maharīa HaLevi accepted his words and retracted.

However, he notes regarding this that the Maharīa HaLevi was printed in 5653, after the printing of Minchat Shai, which was printed in 5651, and in it his rejection of the Minchat Shai remains in place; no retraction is mentioned there at all.

There he wishes to distinguish: if the testator is a person who does not observe Torah and mitzvot and arranged the will through an attorney, and it may be assumed that this was his intention, there is room for the view of the Achiezer that this is considered as deposited for that purpose. But with regard to one who observes Torah and mitzvot, it would seem that if he did not make kinyanim, then it is not valid according to halachah.

However, HaGaon Rabbi Shlomo Zafrani shlita (Moriah, year 20, issues 10–12) cited from Maran Rabbi Yosef Shalom Elyashiv zatzal that his opinion was that wills not made according to halachah have no validity by virtue of a kinyan through the courts, because it is a document taking effect after death, unlike the Igrot Moshe.

Regarding the words of the Achiezer, Rabbi Yosef Shalom Elyashiv zatzal held that the Achiezer’s intent was that the will should be upheld by way of compromise between the parties, since even the Achiezer did not intend to remove the inheritance completely by virtue of such wills, but only to distribute charity after death. He ruled that ab initio one should certainly make a will according to the view of the holy Torah.

The view of the author of Chishev HaEfod

Chishev HaEfod (vol. 2, sec. 106) discusses these wills at length and cites the view of the Achiezer: since under their laws every will appoints an executor to carry out the will, it is as though the property was placed in the hand of that appointee, and thereby it is considered deposited with a third party. From his words it appears that according to the Achiezer, whenever it is brought before the courts this is considered an act. However, according to the reasoning of Chishev HaEfod, only appointing a person to execute the will is considered depositing it with a third party, and this requires examination.

The definition of the law of the mitzvah to fulfill the words of the deceased

The Gemara (Ketubot 70a, Gittin 14b, and elsewhere) records the concept of a mitzvah to fulfill the words of the deceased, and Tosafot (Ketubot 86a, s.v. peri’at) wrote that the mitzvah to fulfill the words of the deceased is a rabbinic mitzvah. However, in Sho’el U’Meshiv (Responsa, third edition, vol. 2, sec. 183), he cites from the Derashot of Rabbi Yehudah Shuaib in the name of the Ramban that from the verse stated regarding our forefather Yaakov (Bereishit 50:12), “וַיַּעֲשׂוּ בָנָיו לוֹ כֵּן כַּאֲשֶׁר צִוָּם” — “And his sons did for him just as he had commanded them,” we learn that there is a mitzvah to fulfill the words of the deceased. The Maharsham (Responsa, vol. 2, sec. 224:12) cites and discusses whether this is biblical or only an asmachta. In Tashbetz (Responsa, vol. 2, sec. 53), he writes that this law is included in the mitzvah of the laws of inheritance.

The Shulchan Aruch (Choshen Mishpat 252:2) rules: “There is a mitzvah to fulfill the words of the deceased, even if a healthy person commanded and then died, provided that he now gives it to a third party for that purpose.” This is also the opinion of most Rishonim: one does not compel performance of the mitzvah to fulfill the words of the deceased unless the property was deposited with others by the instruction of the testator. However, the opinion of the Ramban, the Ritva, and those who follow them is that no deposit with a third party is required, and in every case the words of the testator should be fulfilled.

The Machaneh Ephraim discusses the mitzvah to fulfill the words of the deceased: whether it is considered a kinyan, or whether it is only a mitzvah incumbent upon the heirs to fulfill. He cites a contradiction in the sugyot of the Gemara regarding this and concludes by distinguishing: if it was deposited immediately, at the moment he died, the third party acquires on his behalf; but when he commands the heirs and not the third party, the recipient has not yet acquired.

The mitzvah to fulfill the words of the deceased when he instructed in writing but did not say it before the heirs

One must discuss the common practice of writing a will and depositing it with the registrar of wills, with a rabbinical court, or with a trustworthy person, to be opened only after death: whether in this case too there is a law of the mitzvah to fulfill the words of the deceased.

Rabbi Akiva Eiger (Responsa, first edition, sec. 150; his words are cited in Pitchei Teshuvah, Choshen Mishpat 252:3) writes that perhaps even if one writes this to his son and sends the letter to him, writing is like speech for this purpose; but if he did not command him in his presence and merely handed him a sealed item to read after his death, from where do we know this? In any event, according to what we rule in accordance with Rabbeinu Tam, that without depositing it with a third party there is no law of the mitzvah to fulfill the words of the deceased.

The Maharsham (Responsa, vol. 2, sec. 224:7) discusses this at length and writes that in such a case we do not say there is a mitzvah to fulfill the words of the deceased. His words in that case are: in our case, they need not fulfill it because of the mitzvah to fulfill the words of the deceased, because the heir was not present at the will.

In Ma’ara’l Tzintz (vol. 1, sec. 16), he was uncertain about this based on the words of the Rashba, and concluded that when one writes in the language of a will, or tells others to instruct the heirs that he commanded them, or that he wrote, then certainly the mitzvah to fulfill the words of the deceased applies. It may be said that even when one writes to his heirs in the language of a request, the law is the same, according to the words of the Rema (Choshen Mishpat 250:21): one who asks his heirs to do such-and-such with his property is considered to have made the will of a person on his deathbed, for what he requested was done only to strengthen the matter.

The source of these words is Terumat HaDeshen (Pesakim, sec. 99), who wrote as follows: “As for your doubt whether a request is a will or not, it appears that reason inclines to say that it is a complete will. And what he said in the language of a request was in order to urge them and ensure the matter is fulfilled, that they marry her off generously and not through quarrel, as his heart fully desires the matter. And although there is no proof for the matter, there is an allusion to it from the verse which says, ‘Please take your son, your only son…’ (Bereishit 22:2), and our sages expounded: ‘please’ is nothing other than a request.” It is clear from his words that even if the will was expressed in the language of a request, nevertheless it is obvious that it is a full command.

Where the will is not halachically valid, is there a mitzvah because of the law of honoring one’s father?

One must also discuss: even if the will is not valid under Torah law and the heirs are not obligated to fulfill it, are the heirs nevertheless obligated under the law of honoring one’s father to fulfill what was written in the will, since that was the parents’ will?

The Maharitats (old responsa, sec. 32) wrote: “However, he is giving them good counsel, that they bring satisfaction to their bequeathers and do what is upright and good; and all the more so regarding a matter of consecration and charity, it will be reckoned to their merit.” So too it is clear in Derush VeChiddush of Rabbi Akiva Eiger (Writings, end of vol. 1, fol. 90b) that it is the upright path for heirs not to transgress their father’s will.

However, Rabbi Akiva Eiger (Responsa, sec. 68), who discussed at length the matter of a mother’s will conflicting with a father’s will, wrote: “And now it appears to me as practical law that when one commands his sons by way of a will to give such-and-such an amount of inheritance money to so-and-so, they must fulfill it under the law of honoring one’s father. And that which the poskim debated regarding the law of the mitzvah to fulfill the words of the deceased, that it applies only when he deposited it initially for that purpose, refers to the language of ‘give,’ which is only the language of a gift. There is also a practical difference when he commands one of his other heirs, where the law of honoring one’s father does not apply; and even when he commands his sons, there is a practical difference, for because of honoring one’s father we do not coerce them, whereas under the law of the mitzvah to fulfill the words of the deceased we do coerce.”

Later he writes that he is uncertain about this, since they inherited the money and it is their money, and they are not obligated to fulfill their father’s will with it, for we rule that honoring one’s father is from the father’s own resources. He leaves the practical law requiring further study, where he commands his sons to do something involving a monetary loss from the inheritance money: must they fulfill the will?

The Maharsham (ibid., subsection 16) innovates that if the father wrote it in a will, this is considered honoring one’s father from the father’s own resources. So too it is clear in Kochav MiYaakov (vol. 1, sec. 84). However, Tehillah LeDavid (Choshen Mishpat, sec. 101) held that honoring one’s father does not apply where it uproots Torah inheritance.

It emerges that there is a dispute among the poskim whether fulfilling a will involves the law of honoring one’s father from the father’s own resources; and even if it is not from the father’s resources, there is still an aspect of disrespect when one does not fulfill the will.

Practical recommendation

In order not to enter into the dispute among the poskim regarding the validity of a legal will that is not halachically valid, and whether the heirs are obligated to fulfill it under the law of the mitzvah to fulfill the words of the deceased or under the law of honoring one’s father, it is recommended, before writing a will, to consult an expert dayan who knows Torah law and also knows all that is necessary for the will to be valid according to civil law, so that it can be implemented in practice by the authorities {as I have written at length in previous articles}.

“Torat HaMishpat”