One Shabbat afternoon, Mr. Cohen, who was perfectly healthy and sipping tea at the time, turned to his son Jack and said, “You know that I love your sister, Jill, as much as I love you. So when I die, I would like her to have half of my estate together with you.”
Later, when Mr. Cohen passed away, Jack refused to share the estate with Jill. He argued that according to Jewish law the son inherits the entire estate and the sister is not entitled to a share. “The only way Dad could have changed the situation,” said Jack, “is either by means of a shtar tzava’at barie, a Will By Way of Gift of a Healthy Person, or by means of a tzeva’at shechiv mei’ra, a dying declaration. But Dad did neither. He did not do the former because his wish was not put down in writing. Neither was it accompanied by a ma’aseh kinyan, an act of transfer. Dad did not do the latter because he was not dying when he expressed his wish that Jill share in the estate. He was perfectly healthy when he said it. So either way, Jill is out of luck.”
So Jill went to her rabbi. The rabbi called Jack. “Look, Jack, you admit your father expressed his wish that Jill share in the estate with you. You have an obligation to carry out the express wish of the deceased, mitzvah le’kayem divrei ha’met. So be a good Jew and share the estate with Jill.”
But Jack refused. Mitzvah lekayem divrei ha’met or not, he was the legal owner of the estate according to Torah law. In the absence of one of the effective ways for changing the Torah’s order of succession, Torah law was on Jack’s side. He was adamant. In fact, in order to preempt any further pressure on him, Jack sold all the assets in the estate to a third party, pocketed the money, and spent it.
When does the obligation of mitzvah lekayem divrei ha’met apply, and how could it have improved Jill’s position?
According to the accepted halacha, the obligation of mitzvah lekayem divrei ha’met applies only if the deceased, during his lifetime, actually deposited with a third party (such as a designated administrator of his will) the assets he wished to give to the beneficiary, with instructions to give those assets to the beneficiary after his death.
But none of this would improve Jill’s situation in the circumstances of this case. It is generally accepted that, unlike a shtar tzava’at barie or a tzeva’at shechiv mei’ra, which has the power to transfer the ownership in the estate to the beneficiary of the gift – even if such beneficiary is not a recognized heir under Torah law – the obligation of mitzvah lekayem divrei ha’met does not transfer ownership, even when the assets are deposited with an administrator with instructions to deliver them to the designated beneficiary.
Notwithstanding the obligation of mitzvah lekayem divrei ha’met, unless the deceased made the gift by way of a shtar tzava’at barie or a tzeva’at shechiv mei’ra, Jack remained the legal owner of the property because he was the Torah heir. It is true that the by virtue of mitzvah le’kayem divrei ha’met, Jack, who remained the legal heir under Torah law, had an obligation to share the estate with Jill. Indeed, as long as the estate is still in the hands of Jack, a Jewish court of law can enforce this obligation and compel him to do so. Furthermore, if Jill seizes her share in the assets of the estate from Jack, the dictum mitzvah lekayem divrei ha’met permits Jill to keep them.
But Jill’s right, arising out of mitzvah lekayem divrei ha’met, does not transform Jill into an heir. Jack is still the heir, albeit with an obligation to transfer part of the estate to Jill. But if Jack, the Torah heir, ignores his religious obligation of mitzvah lekayem divrei ha’met and sells all the assets of the estate, the sale is effective and Jill has no claim against Jack.
Some halachic authorities have more aggressively applied the obligation of mitzvah lekayem divrei ha’met in favor of the non-Torah heir beneficiary, even when the assets were not deposited with an administrator. These halachic authorities have argued that the right the law of the land gives to daughters to share in the estate is tantamount to depositing the assets with an administrator.
While still recognizing the sons as the legitimate Torah heirs, these halachic authorities have ruled that, based on mitzvah lekayem divrei ha’met, the daughters in such situations must receive their shares of the legacies.