“Dad, after 120 years, when you are no longer with us, do you think I could have the little gray pocket Tanach, you always refer to when you study Talmud?”
I asked him this audacious question in the middle of a private Talmud study session in his office. I made the request because that Tanach was all I really wanted from his estate, and, as the youngest of five children, I was not sure I would be first in line to inherit it.
My father took out his pen and wrote on the front cover page of the Tanach:
“This book is given, today, as a gift to my son Raphael.”
The Jewish laws of hereditary succession dictate the order of succession to the estate of the deceased as follows: (1) the sons (2) their descendants (3) the daughters (4) their descendants (5) the father (6) the brothers (7) their descendants (8) the sisters (9) their descendants (10) the grandfather (11) the brothers of the father (12) their descendants, (13) the sisters of the father (14) their descendants, and so on.
The identity of the heirs and their order of succession cannot be changed by testamentary disposition in a will. Any stipulation in a will that attempts to do so is invalid. The usual halachic rule that a person has freedom of contract in monetary matters does not apply to the laws of hereditary succession. During his lifetime, a person has the power to give his property to whomever he pleases. After his death, this power is taken away; he is no longer the owner of the property and the biblical laws of inheritance now determine what happens to the property. The Torah refers to these laws as a chok, a decree, for which reasons are not usually given.
If a person wishes to give his property to a person who is not recognized as an heir under the Jewish law of succession or to alter the Torah’s order of hereditary succession, he must do so by means of a gift. A gift, however, cannot be made after the death of the donor because, as we have seen, according to Jewish law a person loses all his rights to his property after his death, including the right to gift the property to others.
An “heir” who receives a portion of the deceased’s estate to which he is not entitled under the Jewish law of hereditary succession is considered to be in possession of stolen property, which he must return to the legitimate heir. In order to be effective, the gift must, therefore, be made during the lifetime of the donor.
Accordingly, by means of a gift made during the lifetime of the donor, a person may give his property to a person who is not recognized under Jewish law as an heir and thereby effectively change the order of hereditary succession. In this way, a person could, if he wished, disinherit his entire family. Although the rabbis frown upon such a disposition of one’s property to non-heirs, it is an effective disposition if it is done in the proper way.
Such “testaments” must state that the donor is giving to the designated recipient certain designated property, the ownership of which is transferred to the recipient at the time the “testament” is signed but the use and possession of which can only be enjoyed by the recipient after the death of the donor. In this way, the donor can continue to use his possessions during his lifetime even though the ownership has already been conveyed to the recipient of the gift.
It is always possible that a person, during his lifetime, will have second thoughts about the final disposition of his estate, notwithstanding that he has already signed the “testament” which conveyed the ownership of his property, by way of gift, to the recipient. In order to provide for this change of mind, a clause is usually written into the “testament,” reserving the right of the donor to revoke the gift during his lifetime, even up to one hour before he dies.
