Highlights when drafting international wills

introduction where a will involves property that is located is another country or jurisdiction, it is an international will. In order to ensure the will is fully executed it is of utmost importance to take into consideration the laws of the country where the property is located.

In the judgment of the Israeli Supreme Court the court discussed the issue of cogency in the sections of the Israeli Inheritance Law, and reached the conclusion that this section is indeed a cogent clause, and for this reason, as if the clause were not a disposable statutory order.

In its interpretation, the Supreme Court reached the final result, relying on the foundations of private international law as it shall be seen below.

As the judgment of the Supreme Court confronts the freedom of the command on the one hand with the principle of the cogency of the provisions of the law on the other, it seems that the Supreme Court decided correctly, even if at first glance some might say otherwise. Among the considerations that the Supreme Court has presented in its balance of considerations, there is a consideration of what many people fail to consider, namely that international law in all its aspects is part of the Israeli law.

Facts and problems

The testator held dual citizenship, both Dutch and Israeli, died in the Netherlands. Prior to her death, and during a visit to Israel, she wrote a will that relates solely to her estate in Israel. In this will, the lady deprived one of her daughters of an inheritance, and ordered her property to her two other daughters.

The Family Court ordered the beneficiary of the will to prove the Dutch law for him, and she appealed to the district court that accepted her appeal. The decision of the District Court is based on the reasoning that the investigation of the testator’s wish leads to the conclusion that she intended to apply Israeli law to her will, and not necessarily the Dutch law.

A number of factors, according to the court, pointed to this supposed intention of the deceased, including (among other things) her Israeli citizenship and the fact that she was formerly a resident of Israel. The District Court attributed special importance to the deceased's decision to conduct her will in Israel and in the Hebrew language.

Thus, the District Court allowed the will to be fulfilled in its language and spirit, while following the principle of inheritance law found in section 54 of the Inheritance Law and in other sections, which is the will of the testator.

An examination of the reasoning of the District Court shows it made a Herculean efforts to give the will validity as it is, ignoring the main rules of private international law to assist the validity of the will. The reason for this effort is clear: from the court’s point of view, a legal proceeding is not a beauty contest, but an informed weighting of the full legal arguments for and against, and ultimately the result required by law - even if the result infuriates the other - To the will than to disqualify it.

In spite of the autonomy granted to Israeli law by virtue of its existence, it does not live in a vacuum, and in the appropriate (and many) cases, the Israeli court must give great weight to a foreign law that conflicts with Israeli law in a given case.

Thus, an Israeli court should not allow itself to violate the laws of a foreign state in the framework of a proceeding that is being held before it. This is because the Israeli court may consciously or unconsciously find itself treading on the court of that foreign state (the Netherlands in the present case) and achieving its legal and sovereign borders in violation of the rules of international politeness in general and against the rules of the conflict of laws in particular. As our firm specializes in International law, we stress that point.

In addition, not only is the Israeli court liable to find itself a source of anger on other countries as it is the long arm of the State of Israel, it may also find itself a favorite of people around the world as a preferred forum for submitting claims that have nothing to do with Israel. The same conspiracy to circumvent the limitations of the laws of that country in which the litigants do not wish to litigate, in mockery of other States which are the appropriate forum for the clarification of those legal disputes.

A cogent law clause that contradicts the will of the testator

Following the District court decision, the Attorney General initiated an appeal to the Supreme Court, which is not common, to say the least. The Attorney General's claim was that the District Court erred when he ruled that the Dutch law does not apply to the succession of the testator, and the A-G felt that the provision of section 137 of the Israeli Inheritance Act is cogent and as such can not be conditioned.

According to the A-G, only an interpretation according to which this was a cogent provision, is consistent with the language of the article and its purpose, which is to give almost absolute priority to the law of the testator, over any other law. The A-G claimed the substantive law that applies to the matter can not be a disposable statutory order.

The A-G further argued, and rightly so, that the issue should be examined in the light of the laws of private international law and not only in the light of the laws of succession. According to the A-G, this examination shows that in such a proceeding, the municipal (internal) law of each state prevails, in other words, every sovereign state, as long as it has not committed itself of any other will, is entitled to design the rules of conflict of law it deems appropriate.

It is not possible to stipulate a cogent provision in a foreign law. Sections 135 to 144 of the Inheritance Law, deal with the manner in which an Israeli court will apply the rules of private international law on inheritance as follows:

"The choice of law” The inheritance shall be governed by the law of the deceased at the time of his death, except as provided in sections 138 to 140. "

However, Article 137 should be read together with the definition of a "seat" of a person defined in section 135 as the place where his center of life is located, and together with Article 142, which discusses the Renvoi rule (a rule of international law, outside the scope of this article, meaning "External law referring to another law”).

“Notwithstanding the provisions of this act, when the law of a particular State refers to a foreign law, no reference is required, but the domestic law of that State shall apply; However, when the law of that state refers to Israeli law, it is necessary to refer to the internal Israeli law. "

It seems that the Israeli legislator has given due consideration to the obligation of Israeli legislation to give proper attention to the laws of other countries, and the wording of the above article gives due respect to the laws of foreign countries that Israel desires in proper legal reciprocity.

The application of Article 142 to the facts of the case in question led the Supreme Court to a labyrinth that is not simple: on the one hand, property law (and real estate in particular) is governed by the law that applies to their place of residence, Or marriage - as opposed to specific transfers of assets, where these exceptions apply, in appropriate cases, to the ordinary rules of conflict of law in property, but rather to those special rules that are special law.In Israel, the legislator has set these rules in legislation, The above case.

On the face of it, the reading of sections 137 and 138 of the Inheritance Law raises the feeling that article 138 completes section 137. This is apparently correct in a variety of other cases, but it is incorrect when the purposeful result of this interpretation of the law means that it is metaphorically stepping on the toes of its laws of another country. Indeed, this is the basis of the Supreme Court's ruling: Its statement emphasizes that the Israeli conflict of law rules assume that the author's closest relationship is with her country of residence, and therefore it is appropriate that the moral decision of a state, as expressed in this law, even if her inheritance is situated in a place different from his place of residence and even if his inheritance includes real estate assets located in another state.

The Supreme Court stresses it does not disregard the scale of values that the State of residence of a person seeking to dictate his laws. According to the Supreme Court, ignoring the same scale of values, oftentimes a different scale of values to those in Israeli law, is something from which it should avoid as possible, as such practices could undermine the legal regime of inheritance law of various other countries, a matter that Israeli legislature must respect enact the provisions of Article 137. In other words, the Israeli legislature expressed the opinion that if another state (the Netherlands in our case), seeks to ensure the rights of the tastator’s children, as a social statement of values, the role of the Israeli court is to ensure that these rights are respected - even if litigation relating to assets left by a resident of the Netherlands is held in Israel. Therefore, the Israeli court will not assist a Dutch resident to brush off cogent laws of the Netherlands.

Further examples of this correct approach can be found in the Israeli legislature and its ruling: In CA 51/73 Deborah Kalmer v. Competent Authority for the Purposes of the Victims of Nazi Persecution Law 24 (1) 253, where the Supreme Court listed some of the basic considerations it would consider when deviating from the provisions (Even when the result is difficult, such as in the circumstances of CA 51/73), for example: when the relevant provisions of the foreign law are not sufficiently clear, and when they are given different interpretations, more restrictive or liberal, Uniform and inconsistent on a particular issue in the courts of that State whose laws seek to deviate, etc.

Public policy

In the present case, the Supreme Court goes into detail at this point, while referring to the reasoning of the District Court, which in its opinion was the opening through which it would be possible to leave the boundaries of the foreign law (Dutch) and to rule according to Israeli law only. The Supreme Court reiterates that the legal precedent that is referring to exceptions that allow the Israeli court not to apply foreign law for its violation of public policy should be done sparingly and narrowly, and the Israeli court will invalidate the application of foreign law only when there is no escape from the matter (internal public policy on the one hand, And external public policy on the other side - see HCJ 143/62 Funk Schlesinger v. Minister of the Interior, PD 17 (1) 225).

Only a foreign law that contradicts external public policy, and whose scope is much narrower than that of internal public policy, will not be applied by an Israeli court. It should be noted that the Israeli court is authorized not only to act negatively, but also to be positive, such as when the Israeli court finds itself compelled to supplement lacunae in foreign law according to the norms in Israel. However, not every deficiency in a foreign law will be filled by an instruction from Israeli law, and not any discrepancy between a foreign law provision and Israeli law will justify "acquiescence" in Israeli law.

For this purpose, according to the Supreme Court's ruling is that the Israeli court should consider only the application of those internal norms that are universal - norms that are the property of civilized countries that operate according to accepted international standards. The application of these principles in the circumstances of any matter before an Israeli court is not at all simple. It argued in another case that "public policy" is not a magic word intended to allow the application of Israeli law to a legal conflict governed by foreign law. "The pipe of public policy under private international law, through which norms from system to system are derived, is much narrower”. (See HCJ 300050/98 Givat Zeev Local Council et al. V. Mahmoud Muhammad Ali et al.).


In conclusion, the Supreme Court's conclusion was that it is impossible to make a provision for a cogent provision - let alone a cogent provision in a foreign law. Its reasoning is that giving legal sanction by an Israeli court to the violation of a foreign act of legislation reflecting a scale of values that is different from the accepted scale of values is an act that contravenes the rules of private international law, and may be construed as an infringement of the laws of that foreign state.

Justice Rivlin sums up the statement at the basis of the ruling in a quote from the American judge Cardozo: “We are not so provincial as to say that every solution of a problem is wrong because we deal with it other at home” (Loucks v. Standard Oil Co., 224 N.Y. 99, 111 (1918)).

On a practical level – whenever drafting a document of important legal consequences, it is vital to consult with a legal professional.

** The information presented in the article is general information only and does not constitute legal advice and / or opinion. The author and / or the system do not bear any responsibility towards the readers, and they are required to receive professional advice before any action based on the aforesaid.

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