Halacha and the Conventional
Last Will and Testament
Judah Dick

Another possible saving feature of legal wills is based on the view of Maharam Rotenberg and the Mordechai: ²⁹ that halacha does make provision for a conventional will prepared by a healthy person (bari), allowing it to take effect in the same manner as a matnas she'chiv me'ra - the bequest spoken by a person on his death bed. According to their view, the Talmudic reference to a gift by a bari, similar in operation to one made by a she'chiv mera (Bava Bathra 135b), was intended to permit anyone to make an oral or written will in the presence of witnesses without need for a kinyan. All that is required is that the gift announcement be made in contemplation of death and that it dispose of all of the person's possessions.³⁰ (If any possessions are left out of the disposition, it cannot be a matnas she'chiv mera). True, this view is not accepted by most Rishonim and Acharonim, but it may well be that the general custom of treating legal wills as valid may establish this minority view as the halachic norm in those communities. This may be so, because a minhag (custom) can generally determine a conflict among poskim, especially in monetary matters. ³¹

If this approach is relied upon, it would be preferable that the witnesses to the will be halachically competent (kosher), i.e., observant males over thirteen years of age and not related to each other or to any of the parties affected by the will. It should be noted that if the legal heirs do not challenge the signature on the will, the signature in and by itself may be sufficient, dispensing with the need for "witnesses."

Under the laws of New York and many other states, a holographic will which is not witnessed by two persons is not generally accepted. But if there are witnesses who are not "kosher," and the will is legally proper, the will may nevertheless pass the halachic standard because of the testator's own signature. ³² Other theories have been advanced to validate legal (non-halachic) wills in accordance with liberal views of some Rishonim, who rule that miztzva lekayeim divrei ha'mes is applicable to all situations, including healthy persons, especially where the testator is a parent and the respect of parental wishes may be considered as Kibud Av ve'Em. This is espeically so where the executors or legatees under the will are in actual possession of the estate's assets. ³³

The Bottom Line

In conclusion, it should be said that it would be far preferable - and likely be more proper - if a will is prepared in a manner that meets the strict requirements of halacha, in keeping with the views of all poskim. A sample of such a will is available from this author upon request. [It should be noted that since the sample refers to a kinyan, it was best implemented if the witnesses made a symbolic kinyan by giving a handkerchief or other chattel of theirs to the testator before he signed the will. By making such kinyan, they are considered as agents of the legatees mentioned in the will.³⁴ Money cannot be transferred by such a kinyan but may be transferred by a kinyan agav. This means that the testator symbolically transfers a piece of real property he owns or rents to the legatees and, together with it, any money or other chattel he wishes to transfer.

It is technically possible to avoid the need for any type of kinyan, by acknowledging that a proper kinyan has taken place, even if it did not in fact occur.³⁵ The sample will contains such an acknowledgement so that the omission of an actual kinyan would not invalidate the will. Such an acknowledgement may also resolve the difficulty of transferring any debt whether oral (milveh ba'aI peh) or evidenced by a note (shtar).]

Post facto, if one has made a legal will without conforming to halachic requirements, it would probably be sanctioned by a Beth Din (rabbinical court) in which the will's validity is questioned, on the basis of custom supported by the view of a minority of poskim.³⁶ There is still one stipulation - that the term "give" be utilized rather than only "leave" and "bequeath," because any attempt to interfere directly with the order of inheritance prescribed by the Torah is ipso facto invalid, and it is only by way of a "gift" that the halacha permitted even a shechiv me'ra to alter the order of inheritance prescribed in the Torah.

Circumventing the Bechor

The use of a gift is also an effective means of avoiding the rights of an eldest son (bechor) to his additional share, since the rules of bechora only govern inheritance and not gifts. ³⁷ Some maintain that it would be best to leave some amount of money or property outside the will, so that the Torah's rules of inheritance apply to at least a portion of one's estate. ³⁸ This can be accomplished by including a special paragraph in the will so stipulating.

For a do-it-yourself-er, a legally valid will can be drawn up by a layman, as long as it is properly signed and witnessed by two persons who are not named in the will as legatees. Thus, anyone writing a will according to one of the halacha forms (such as those in Otzar Hashtoros or Nachlas Shiva) can make it legally valid. It may be written in any language, but would have to be translated into English before it could be probated in a state court. Wills drafted by laymen have been the source of much litigation and are not recommended for the uninitiated.

In summary, it is important that we explore all aspects of our personal and business lives to rediscover the myriad broad areas and countless fine points that have clearcut halachic requirements and guidelines. Then we must endeavor to change our lives to conform with the halacha ... to bring the Choshen Mishpot off the shelf and make it an active source of our conduct, as it is meant to be.