Halacha and the Conventional
Last Will and Testament
Judah Dick

Talmudic scholars have demonstrated that, by utilizing the laws of gifts and inter-vivos trusts (trusts made during one's life-time), a Jew can create a halachically acceptable will-substitute. The Torah laws of inheritance only apply to property owned by the person at the time of his death; however, one can made a gift to absolutely anyone - heir-apparent or otherwise - until the last conscious moment of one's life. Thus, if the person gave away or otherwise disposed of his property during his lifetime, the restrictions limiting the inheritance would not have any effect.

(The discussion here will not include matnas she'chiv me'ra: a special rabbinical enactment that permits a person on his death bed to distribute his assets as he sees fit regardless of laws of inheritance. The only proviso is that he use the terminologies of "gift-giving" rather than a "bequest" - or at least use both terms, in which case it will be presumed that he had intended to give a gift. Such gifts take effect in the case of death, but are revocable if the person recovers from his illness.⁶ We are primarily interested in a person of normal health, who desires to draw up a will or document with the general characteristics of a will recognized by secular civil law.)

There is a drawback in making an ordinary outright gift, since the testator (maker of a will) does not wish to part with his possessions during his lifetime; but halachically one cannot give a gift during his lifetime to be effective after death, since death divests the testator of title and vests title in his legal (halachic) heirs.⁷

What we seek here, then, is a means by which the gift-giver presents the items in his will to his intended heirs while he is still living; yet he retains full control and possession of his property during his entire lifetime and the power to revoke or change his will as long as he lives.

The Method & The Drawback

The technique generally utilized so as the conform both to halacha and the wishes of the testator is a revocable inter-vivos trust: technically, the beneficiary takes immediate title to the property, but the donor retains the right of all income during his lifetime, and may revoke the trust if and when he so desires. ⁸ The drawback to this method is that a majority of poskim (halachic authorities) require a kinyan - a formal immediate transfer of title to the property, which is done by the witnesses giving their garment symbolically to the donor. A significant problem inherent to this method is that the kinyan is only effective in transferring property (other than currency) which is in the possession of the donor at the time of the kinyan. It has no effect whatsoever on property yet to be acquired⁹. Yet, a conventional will generally deals with future holdings as well.

There are other methods of transferring currency, such as through agav, whereby a movable item - like silver, china, or furniture - can be transferred simultaneously with an interest in real property, which can be accomplished with kinyan, but there is no universally accepted means for transferring something which is not as yet in existence (davar shelo bo le'olam) or not presently in the testator's possession (davar she'eino bi'reshuso) ¹⁰. Thus, if a person acquires new possessions after making his inter-vivos trust, these possessions are not covered by the kinyan. His will based on this device is totally ineffective as far as these newly acquired possessions are concerned. Worse yet, the beneficiaries carry the burden of proof to show that the items transferred - that is, covered by the will - were in existence and in possession of the donor at the time the trust was made.¹¹

This burden of proof may be difficult to meet and could readily serve to frustrate the intention of the donor. Thus, the inter-vivos trust approach (standing alone) gets poor marks as an all-purpose method of transferring property through the conventional will.

"Harken to my wishes ..."

Another technique for making a will is based on the maxim of the rabbis: "Mitzva lekayeim divrei ha'mes - It is a mitzva to fulfill wishes expressed by a person since deceased." Under this rule, although title to the property descends to the legal heirs, as per Torah laws of inheritance; nevertheless, the heirs are under an obligation to carry out the wishes of the decedent and dispose of the property as he indicated.¹² Thus, any intended disposition of assets expressed in a legal will become "the wishes of the deceased," and the heirs are obligated to carry them out.

The drawback to this technique is that it applies only where the decedent addresses his wishes directly to his heirs in their presence in regard to existing property, or when he transfers possession to the property during his lifetime to a trustee, with directions on how it should be distributed. ¹³ In the ordinary will situation, the testator often does not wish to inform his legal heirs of his testamentary wishes in order to avoid undue pressure and hostility, nor to part with title during his lifetime. Moreover, according to many views this rule applies only to a she'chiv mera ¹⁴.

Creating an Indebtedness

A most original and effective technique of bequeathing one's possessions halachically is to create a theoretical indebtedness in favor of the chosen heirs (such as "Faige," Mrs. Samsonoff's granddaughter). This debt (to Faige) becomes a lien on all the testator's (Mr. Samsonoff's) property - both current and future holdings.

A person may create an indebtedness even if none previously existed, even if no loan or other consideration was ever given, merely by executing a note in favor of another person. ¹⁵ In the will situation a debt for a huge sum well in excess of the total value of the estate is created, but does not mature and is not payable until one hour before death. The huge sum is not going to be paid, but will be used as leverage for carrying out the terms of the will: the note, by its terms, gives to the halachic heirs (Mr. Samsonoff's sons) the option of paying the debt or a stated legacy in lieu of such debt. This legacy is the amount willed to the chosen legatee (Faige).

This technique was primarily used to give daughters a half share or full share in one's estate and is known as shtar chatzi zachor (half share) or shtar zachor shaleim (full share). Such a document was often drawn up and delivered to a daughter at the time of her marriage, and generally excluded real property and holy books.¹⁶ A fictional debt (a personal obligation not subject to the restrictive rules of kinyan) was utilized in preference to a direct chiyuv since there are problems in dealing with a specific item not yet in existence or in the possession of the donor at the time the chiyuv was created. In such case, there is a difference of opinion among authorities as to whether the chiyuv is binding on the donor's legal heirs.¹⁷ On the other hand, in the case of fictional debt, the debt is absolute, and the giving of the bequest or legacy is an optional method of satisfying the debt: this technique is definitely binding on the donor's heirs, since non-compliance would trigger the full monetary obligation of the note.