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Introduction
One of the main legal procedures that the Family Court deals with is contesting a will. This is initiated by someone who wants to have a particular will invalidated. In order to do so, they will need to present evidence that one of the grounds for invalidating a will under Israeli law exists.
Obtaining a Grant of Probate
The process of contesting a will begins when the testator dies and their heirs file an application for a grant of probate. This order is required in order to be able to distribute the estate among the heirs. The application is submitted to the Registrar of Inheritance Matters and, as part of the process, a notice of the application is published in a daily newspaper. This is done so that any interested party has the opportunity to object to the will, i.e., to the granting of the order, which allows the property to be distributed among the heirs. If no objection is filed and the application is in order, the Registrar will issue the requested order to the heirs. However, if an objection is filed, the Registrar is not authorized to hear it and the matter is transferred to the Family Court. Then, the parties will be summoned to a hearing, will present their evidence, and on the basis of this evidence, a decision will be made whether the objection to the will is accepted or rejected.
When to Contest a Will
A person who wants to have a will invalidated must do so within the time period set by the Registrar of Inheritance Matters. This period is usually a minimum of 14 days from the date of publication of the notice. What happens if a notice of objection to a will is filed after the deadline? In principle, as long as the Registrar of Inheritance Matters has not issued the order, the public is still able to file objections. However, it goes without saying that it is impossible to know when the order will be issued, so it is not recommended to delay in this matter, but rather to contact an attorney specializing in wills and estates as soon as possible. As will be seen below, legal representation in this proceeding is of crucial importance.
Burden of Proof
There are two sides to a will contest proceeding: the applicant, who is the one who files the objection and claims that the will is invalid, and the respondent, who is the heir or heirs who want the will to be upheld. As a general rule, the burden of proof in this proceeding is on the applicant. They must show that one of the grounds for invalidating a will, as listed in the Inheritance Law, 1965, exists in the case at hand. Discharging the burden of proof will be done by presenting evidence supporting the applicant’s claims: documents, witnesses, photographs, videos, and the like, the purpose of which is to prove the defect or defects in the will that they are claiming. In addition, in some cases, expert opinions can also be used. If the applicant proves their claims, the court will accept the objection and invalidate the will, either in whole or in part, as will be explained below.
Reversal of the Burden of Proof
In some cases, the Family Court will reverse the burden of proof and shift it from the applicant to the respondent. For example, if the applicant claims that the will should be invalidated on the grounds of undue influence and proves that there was a complete dependency of the testator on one of the heirs. Then, the burden of proof shifts to that heir, who will be required to prove to the court that they did not unduly influence the testator. Another example is when there is a formal defect in the will, such as the absence of the testator’s signature on the document. Here too, the burden of proof is reversed and the respondent will be required to prove that despite the lack of a signature, the will is authentic and was indeed made by the testator.
Grounds for Contesting a Will
As mentioned above, the Inheritance Law lists various grounds for invalidating a will. These may relate to a formal defect in the will, such as the absence of a signature or date, to the testator’s incapacity to make a will, to unlawful conduct on the part of the heirs that justifies invalidating the will, and more. In addition, there are grounds for invalidating a will that relate to a specific type of will. For example, when it comes to a holographic will, a claim can be made that it is not the testator’s handwriting and therefore the will is forged and must be invalidated. If it is a witnessed will, the objector can claim that one of the witnesses has an interest in it, in which case the will is invalidated since one of the conditions is that the witnesses to the will do not benefit from it.
Undue Influence
A significant proportion of will contest proceedings are filed on the grounds of undue influence.
