People often change their minds, or do not really mean what they say. This appears especially true in money matters. “Oh, I may have told you yesterday I sold you my house, but that was yesterday. Today, circumstances have changed, and besides, I don’t like you anymore.”
Our rabbis, keenly aware of the often ephemeral nature of our resolutions, make us jump through some procedural hoops in order to ensure that we mean what we sell or give away. Accordingly, under Jewish law a verbal sale or a verbal gift of property is ineffective. To be effective, the words “I sell to you” or “I give to you” must be accompanied by an act of sale.
Such an act, which lends physical expression to the mental decision to transfer property, is referred to in halacha as a ma’aseh kinyan, or simply a kinyan. There are different forms of kinyan for different types of property. For real estate, the ma’aseh kinyan can take the form of a deed of sale executed by the seller in the presence of witnesses, the unchallenged possession of the property for a period of three years, chazakah, or by the simple act of handing over the key. For movable property, the ma’aseh kinyan is effected by lifting up or moving the article to be acquired.
The requirement that a gift is only effective if a ma’aseh kinyan accompanies it applies equally to a “Will By Way of a Gift of a Healthy Person.”
One who wishes to give his property to a person not recognized as an heir under the Jewish Law of Succession may do so while he is still alive by means of a gift. But the gift, to be effective, cannot be merely verbal.
A healthy person cannot effectively say, “When I die, you will get my property.” The person may not die for another fifty years, too many things may happen in the interim, and the person making the will may change his mind.
Such a will, by Way of Gift of a Healthy Person, must be made in writing. Furthermore, the property conveyed by it must be acquired by means of a kinyan sudar, which is a symbolic act of acquisition, such as the passing of a handkerchief from the person making the will to the beneficiary. Once made in writing with a ma’aseh kinyan, the Will by Way of Gift of a Healthy Person is irrevocable, unless the will contains an express provision which allows the gift to be revoked.
There is, however, one notable exception to the requirement of a ma’aseh kinyan.
A person who is about to die is referred to in halacha as a shechiv meira. We can assume that a shechiv meira is dead serious when he says “I want to give all my property to so and so.”
If we insist that the shechiv meira write a will and perform a kinyan sudar on his deathbed, he may die before he can do it and his last wish may be frustrated. The words of a shechiv meira are so concrete that the halacha considers them as good as a written document –divrei shechiv meirah kiketuvim ukemesurim damu.
Like a healthy person bequeathing his property by way of gift, the shechiv meira may give his property to any person, even one who is not recognized as an heir under Jewish law.
Unlike the Will by Way of Gift of a Healthy Person, however, which becomes effective immediately during the lifetime of the donor, the gift of a shechiv meira only takes effect upon his death. The dying person does not want the gift to take effect during his lifetime. The only reason he is giving his property away in the first place is because he is going to die. His death, so to speak, is a condition to the gift. If he miraculously recovers, he wants something to live off and the gift is void.
Indeed, if a shechiv meira says he is giving away less than all of his property, the gift is ineffective. It sends a signal that he does not really mean what he says because he believes he may survive and wants something to live off when he recovers.