Last Will and Testament
‘A Deathbed Request Is Considered 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 someone who has deceased. In other words, although a kinyan (act of acquisition) is generally required to transfer property, our Sages decreed that if someone instructed that a possession of his be given to a certain person after his death, it is a mitzvah for his heirs to fulfill his request 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.
How to Make a Will
According to the Ramban (cited by the Ran on our sugya), even if the deceased did nothing other than order that a certain property be given to someone, his heirs must honor his will. However, Rabbeinu Tam (13a, Tosefos s.v. V’ha lo mashach) argues that the heirs need not honor it unless the deceased entrusted the property to a third party before he died and instructed that it be given to the recipient. If he did so, he demonstrated 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), the Sadigura Rebbe and author of Kedushas Aaron, he summoned one of the rabbanim 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, to 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 leading poskim, and an extensive discussion ensued.
Rabbi Yosef Shaul Nathanson, zt”l (Shoel U’Meishiv II, 78), ruled that his sons had no obligation to honor his will since their father had not entrusted his possessions to a third party before he died. The Maharsham, however, argued 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 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 passuk, “And it shall be for Bnei Yisrael as a statute of law” (Bamidbar 27:11). From this verse we learn that a deceased’s inheritance must be distributed among his relatives according to the laws of the Torah. The Torah’s rights of inheritance cannot be circumvented by a verbal or even written will (with certain exceptions; see Rambam Nachalos, ch. 6).
Acharonim discuss the validity of a will drafted under the auspices of an attorney according to the dictates of secular law. Although the Torah’s 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, a formal will drafted with an attorney leaves no doubt as to the sincerity of the deceased. Therefore, the mitzvah to honor the will of the deceased applies, even if the property was not entrusted to a third party. Since the deceased thought that making a secular will was the proper way to ensure his property was disposed of according to his wishes, his intent is crystal clear.