Mr. Alter was an eclectic old man. He did not own much and led a simple existence, living off his pension and social security. His wife had passed away years ago; he had one married son and one unmarried daughter, who lived with him in his apartment.
Mr. Alter’s life’s savings consisted of several gems, valued at about $18,000. “My savings are set aside for good things,” he would say.
After his wife’s passing, Mr. Alter handed the gems to his brother, who had a safe in his house. “Please keep the gems in your safe,” Mr. Alter had instructed his brother. “If I pass away before my daughter is married, please give them to her.”
Mr. Alter passed away ten years later. He left no will, and negligible property, other than his furniture and the gems he had entrusted with his brother.
After the shiva, Mr. Alter’s son asked his uncle for the gems that had been entrusted with him.
“Your father instructed me,” replied the brother, “that if he should pass away before your sister is married I should give the gems to her.”
“But my father left no legal will,” said the son. “I’m the halachic heir! I’m willing to share the gems with my sister, but I am certainly entitled to at least half the amount.”
“I can’t go against your father’s explicit instructions,” insisted the brother.
“Once a person passes away, his property no longer belongs to him,” argued Mr. Alter’s son. “It belongs to his heirs, i.e., me. You have no right to give the gems to someone who is not the halachic heir.”
“I understand you point of view,” said the brother, “but if seems wrong to me. I’d like to consult Rabbi Dayan on this.”
The two came to Rabbi Dayan. “What should I do with the gems?” asked Mr. Alter’s brother.
“They should be given to the daughter,” answered Rabbi Dayan. “There is a concept of ‘mitzvah l’kayem divrei ha’mes‘ – it is an obligation to fulfill the words of the deceased. The heirs are required to honor his instructions regarding his property.” (C.M. 250:23; Ketzos 252:3)
“This would seem to negate the need for a halachic will, ” said Mr. Alter’s son.
“According to most authorities, Chazal limited the legal application of this concept to a case where the deceased initially entrusted property to a third party with explicit instructions,” explained Rabbi Dayan. “However, if the property remained in the deceased’s hands, or was already entrusted with the third party before he made his statement, the concept does not apply, so there is a need for a halachic will.” (C.M. 252:2)
“What is the rationale for this limitation?” asked the brother.
“Maharit [II:95] indicates that in this case it is considered almost like he gave the property to the third party to acquire on behalf of the recipient,” answered Rabbi Dayan. “Thus, the property never entered the possession of the inheritors. Maharsham [2:224] suggests the reason is that since every transaction normally requires an act of kinyan, we assume the benefactor was insincere in his statement, unless he entrusted it originally with this instruction.”
“There is an opinion,” Rabbi Dayan concluded, “mentioned by some acharonim, that when there is a legally valid will, since the will is enforceable in civil court, the concept of mitzvah l’kayem divrei ha’mes can be applied even if the property was not entrusted with this explicit instruction. In this case, as well, we can consider the recipient as in possession and we consider his intent sincere. However, most acharonim do not accept this ruling.” (Pischei Choshen, Yerusha 4:36-38)