Halacha and the Conventional
Last Will and Testament
Judah Dick

When someone bequests a portion of his estate to a charity, this does not impose a legal (i.e. halachic) obligation on the donor's heirs to carry out this bequest. This is because a bequest is only a personal obligation of the donor, but does not constitute a lien on his assets (the inheritance).¹⁸ There is a difference of opinion among authorities, however, when the donor makes a bequest of a specific object or a set amount of funds to charity. This is because of a rabbinic rule whereby "a pledge to Heaven (i.e. the Temple) is as if delivered to the recipient," which according to some authorities applies to charity pledges also. ¹⁹ The most accepted way of making a charitable legacy enforceable would be in the same manner as an ordinary legacy - such as creating a debt to the charity, as outlined above.

Incidentally, while a person is generally not permitted to contribute more than twenty per cent of his property or income to charity during his lifetime, most authorities agree, one may leave as much as he chooses to charity after his death. ²⁰ People in a high estate-tax bracket may find it advisable to consider a charitable bequest as a means of reducing the estate tax, as well as a benefit for their neshama. This can be accomplished by creating a direct charitable bequest or a trust fund with income (and/or principal ultimately) payable to yeshivos and other worthy institutions²¹ which can be named in the will or left to the executor's discretion. One would be well-advised to pursue this matter with one's legal and financial advisors ... The charity bequest should, of course, be made with due consideration for the needs of the survivors. ²²

The Non-Halachic Will
"Law of the Land"

What, indeed, happens when someone (like Mr. Zoberstein, in the opening anecdote) ignores all halachic requirements, and simply writes a will in accordance with civil law? There is a rule that dina d'malchusa dina (the law of the land has halachic validity). One might wonder why this rule would not supersede any halachic requirements for validity of a will and make it effective halachically. Most opinions maintain that this principle pertains ptimarily to transactions between Jews and the government and/or non-Jews, and does not govern purely intra-Jewish affairs such as family inheritance where no public policy considerations are involved.²³ Therefore, according to this opinion the principle of dina d'malchusa dina cannot supersede the halachos of inheritance.

It should be noted, however, that Rabbi Moshe Feinstein maintains that where the transaction (in this case the will) were only lacking a kinyan, then dina d'malchusa dina would apply and all of the halachic requirements would have been satisfied.²⁴

All would agree, though, that one should pursue all feasible means to write a will incorporating halachically-sanctioned methods of distributing one's property.

"Situmta" - the Prevailing Communal Custom

Others have suggested that the related principle of situmta, or custom of the merchants, may resolve the problem. Under this principle, the commercial customs prevailing in a particular city or area supersede any halacha in civil law, since in money matters, people are free to make any agreements as long as they are based on express or implied consensual relationship between the participants.²⁵ Thus, it has been suggested, where the common practice of the Jewish community is to make wills in accordance with the legal system of the place where they live, such wills shall be deemed to be in accordance with the rules of wills in halacha, as a transfer by inter-vivos trust effective prior to the testator's death.²⁶

The objection to this approach is that the role of situmta is actually limited: it can create a substitute mode of kinyan; it may create contractual obligations or a chiyuv; or it may even, in the view of many authorities, effectively transfer ownership of something not yet in existence;²⁷ but there seems to be no valid basis for converting the very nature of a legal will, which takes effect only after death, into a kinyan that takes place during one's lifetime - which is the element that must be fulfilled.

In other words, although situmta may operate to give legal validity through custom and usage to any act which people can voluntarily implement between themelves, it should not be effective to validly change the laws of inheritance, which are designed to take effect immediately upon death, since even an heir cannot waive his future rights to his inheritance. ²⁸ It seems to be beyond the capacity of situmta to effect the transfer of property within one's lifetime with the use of a transaction designed to take effect only after death.