Language:
Hebrew
Year of publication:
2021
Titel der Quelle:
משפט ועסקים
Angaben zur Quelle:
כד (תשפא) 401-470
Keywords:
Wills
;
Inheritance and succession
Abstract:
The article seeks to address the basic tension inherent to a mutual will, between its testamentary features (as a legal tool for the bequeathment of property after death), and its contractual features (as a plan made by two individuals, based on cooperation and mutual reliance). The uniqueness of mutual wills as a double-faceted legal instrument, and the conflict between the contradicting values embodied therein—testamentary values of revocability and freedom versus contractual values of reliance and restriction—create various difficulties in respect of its theoretical classification and normative regulation.The article reviews the various needs that can be met by a mutual will on the one hand, and the difficulties it may raise and the criticism against it on the other hand. The preliminary conclusion from which the article evolves is that the difficulties arising in respect of mutual wills and the criticism thereof do not render them redundant, and that it is better to deal with the challenges of its theoretical and normative regulation than to preclude the recognition and use of this important tool. This task requires, as a first step, an in-principle discussion of the values underlying mutual wills, and the purposes which they aim to serve.The primary argument of the article is that the justification for giving preference to the contractual values and the protection of the joint testamentary plan underlying mutual wills – while compromising the freedom of bequest – is based on the value of domestic harmony. The said justification is based on the potential of mutual wills to mitigate tensions and concerns between family members, create certainty, trust and cooperation between them and prevent domestic disputes and litigation.The article claims that the protection of the mutual will, its goals and the values embodied therein, calls for reverting to the contractual roots of the arrangement, as determined some 250 years ago in the English law. In other words, mutual wills should be regulated separately from individual wills, as a testamentary-contractual instrument, which includes restrictive elements, with a certain degree of relinquishment of the freedom of bequest. This classification is also called for in view of prominent contractual features inherent to mutual wills. Normative conclusions derive from such classification, which impact the desirable formation of the norm.The article includes a practical proposal for the regulation of mutual wills as a testamentary-contractual instrument – an arrangement which seeks, on the one hand, to meet the goals of the mutual will and the values underlying it, while also addressing the difficulties related thereto. The practical proposal is based on concepts originating from foreign law, while attempting to draw conclusions and propose solutions for problems which have arisen in connection with mutual wills in the existing arrangements – in both foreign and Israeli law.With respect to the Israeli law, the article argues that the law currently creates a quasi-contractual arrangement based on contractual principles of reliance and reciprocity, as well as restrictive elements. However, the gaps and lacunae in the arrangement lead to uncertainty, and the default prescribed thereby does not meet the needs which mutual wills are intended to address. The article argues that notwithstanding the shortcomings of the arrangement under Israeli law, its contractual elements—including the option it offers to deviate from the default prescribed thereby—allow for the implementation of some of the ideas proposed herein also with respect to mutual wills as they are currently regulated by Israeli law.
URL:
אתר את הפרסום בקטלוג המאוחד של ספריות ישראל
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