Last Will And Testament
“A Deathbed Request Is As Sealed And Delivered”
(Gitin 14b)
According to R’ Meir, whose opinion is accepted in halacha (Shulchan Aruch, Choshen Mishpat 252:2), it is a mitzvah to fulfill the will of the deceased. In other words, although a kinyan (act of acquisition) is generally required to transfer ownership of property, our Sages decreed that if a person instructed that after his death a possession of his be given to a certain person, it is a mitzvah for his heirs to fulfill his instruction, even though no kinyan was made (Kesubos 86a, Tosefos s.v. Perias). This is not only “proper behavior” on the part of the heirs, but an actual obligation (Shulchan Aruch, ibid).
How to Make a Will
According to the the Ramban (cited by the Ran on our sugya), even if the deceased did nothing other than order that the property be given to the recipient, his heirs must fulfill his will. However, according to Rabbeinu Tam (13a, Tosefos s.v. V’ha lo mashach), the heirs need not fulfill this instruction unless the deceased entrusted the property to the hands of a third party before he died, and instructed that it be given to the recipient. Thereby, he showed that he was sincere in his intent to give the gift (Teshuvos Rivash 207). This is the accepted halacha (Shulchan Aruch, ibid. See Mishpatei HaTzava’a III p. 301, who cites other opinions).
The Sadigura Rebbe’s Will
About two years before the passing of the Rabbi Aaron Friedman, zt”l (1877-1913), Sadigura Rebbe and author of Kedushas Aaron, he summoned one of the Rabbonim of Berditchev to help record his will. In the conclusion of the will, he wrote: “I rely on the righteousness of my sons, shlit”a, that they will fulfill my will with no alteration, as their father desires.”
After he passed away, his sons agreed whole-heartedly to fulfill every detail of his will. However, they wanted to know if they were halachically obligated to do so. The question was sent to many of the leading poskim of the era, and an extensive discussion ensued, regarding the sugya of “mitzvah to fulfill the will of the deceased.”
Rabbi Yosef Shaul Nathanson, zt”l (Shoel U’Meishiv II, 78) rules that since a father had not entrusted his possessions into the hands of a third party before he died, his sons had no obligation to fulfill his instructions. The Maharsham, however, argues that a third party is necessary only to prove that a benefactor was sincere. In this case, no such proof is necessary, since the Rebbe concluded his will with a clear indication of his intent (Teshuvos Maharsham 2:224).
Wills Prepared under the Auspices of an Attorney
The Torah outlines the laws of inheritance and concludes these laws with the verse, “And it shall be for Bnei Yisrael as a statute of law” (Bamidbar 27:11). From here we learn that the inheritance must be distributed among the relatives of the deceased according to the laws of the Torah. The Torah’s rights of inheritance cannot be circumvented by a verbal or even written will of the deceased (with certain exceptions, see Rambam: Nachalos, ch. 6).
The Acharonim discuss the validity of a will drafted under the auspices of an attorney, according to the dictates of secular law. Although the Torah laws of inheritance might not be affected by such a will, Rabbinic law might still require the heirs to honor the instructions of the deceased. According to the Maharsham mentioned above, a formal will drafted with an attorney leaves no doubt of the sincerity of the deceased. Therefore, the mitzvah to honor the will of the deceased applies, even if the property had not been entrusted to the hands of a third party. Since the deceased thought that making a secular will is the proper way to ensure that his property is disposed of according to his wishes, this is enough to prove his intent.
Another reason that a secular will might be valid in Torah law is that since the recipients of the will can demand their money in secular court, it is considered as if they have already taken possession of the money. Therefore, they are eligible to receive it, even if the deceased did not entrust it to a third party on their behalf before he died (Teshuvos Achiezer 3:34; Minchas Shai 75; Mishpat HaTzava’a 3:301:3).
No New Heirs
In all such cases of wills, it is important to note that a will is only valid if the benefactor asked to give his possessions to a certain recipient as a gift. If he worded it in such a way that he wished to make other recipients his “heirs,” it is invalid, since the Torah recognizes only the biological heirs.
Unfaithful Children
Although it is a mitzvah to fulfill the will of the deceased, if an heir did not do so but rather sold a possession that the deceased asked to be given to another, the sale is still valid. The intended recipient cannot force the buyer to give him the possession (Rema C.M. 252). (However, if the deceased was a sh’chiv meira – on his deathbed – when he gave his instructions, a different category of halachos applies. Then it as if the recipient immediately took possession, and he can force the buyer to give it to him.)
Instructions in a Dream
Once there was a Jew who passed away and was buried outside Eretz Yisrael. After his burial, he appeared in a dream to one of his heirs, and asked that his remains be brought to Eretz Yisrael. The dream was repeated several times, until finally the deceased warned his heir that he must fulfill the request. The heir then asked the Chelkas Yaakov (Y.D. 206) if he was obligated to do so. The Chelkas Yaakov ruled that the “mitzvah to fulfill the will of the deceased” applies only to instructions the deceased gave regarding his own possessions. While he was alive, his money was his own. After he died, his heirs inherited it, and the deceased no longer had any authority over the money to make demands as to how it should be spent. This is especially true in this case, since the heirs were not even his children, and they had no mitzvah of kibud av v’eim to honor his request.
Smashing the Violin
The Chelkas Yaakov adds that although the heir was not strictly obligated to fulfill the request, he should not take lightly the instructions he received in a dream. The Sefer Chassidim (327) tells the story of a certain person who wanted to make a violin out of the wood that was left over from a coffin. Although others who were present protested this insult to the honor of the deceased, the man paid no heed to their complaints.
That night, the person buried in the coffin appeared to him in a dream and warned him not to make the violin, but the man ignored the request. The deceased then appeared a second time in a dream, and warned him that if he made the violin, he would contract a dangerous illness. Again, the man ignored the request, and proceeded to make the violin as he had originally planned. As the deceased had warned, he then fell sick with an illness that threatened his life. His son then took the violin and smashed it over the grave of the offended deceased, and left the shards of the violin on the grave. The sick man then recovered from his illness.
