The Bais HaVaad Institute of Talmudic Law announced that the fifth telephone/video conference in its Halachic Wills & Estates Series will be held on Wednesday, February 3, 2010, 8:30 PM EST. The topic of the conference is “How to Write a Halachic Will,” to be presented by Rav Ari Marburger, Dayan Bais Din Maysharim and author of Business Halacha: A Practical Halachic Guide to Modern Business.
Registration can be done through the Bais HaVaad’s website (link).
A New York court has again declined to get involved in the dispute between two factions of Satmar Chassidim. Briefly, and as I understand the dispute, two factions of Satmar Chassidim are competing for control of various assets belonging to the Satmar congregation. After years of legal battles, the New York State Court of Appeals affirmed a New York Supreme Court decision that the dispute between the two factions presented a “nonjusticiable religious controversy” (see Matter of Congregation Yetev Lev D’Satmar, Inc. v Kahan). The Supreme Court decision included the statement that “the Court leaves intact the status quo in terms of day-to-day operations of the Congregation and its institutions,” pending any further directive from an appropriate religious leader or ecclesiastical tribunal.
In the latest attempt to involve the courts, one of the factions asked the court for a judgment declaring that the other faction is not authorized to act on behalf of the Congregation, based on the Supreme Court’s “directive” in the prior matter that the status quo, which, according to the plaintiffs, consists of their de facto control of the Congregation, be left intact.
The Supreme Court dismissed the case and the plaintiff faction appealed. The Appellate Division, Second Department affirmed the Supreme Court’s dismissal finding that: “Contrary to the appellants’ contention, the statement in the [prior] Supreme Court’s order did not confer any legal rights upon them. The plaintiffs’ present action is merely an attempt to obtain a judicial determination that their faction is authorized to act on behalf of the Congregation, which is precisely the issue that the Court of Appeals held to be nonjusticiable.” Frankel v Congregation Yetev Lev D’Satmar
Is the battle finally over?
- The tribe of Dan camped to the north of the Mishkan under a flag carrying the symbol of a snake. Rabbi Tzvi Price explains Dan’s seemingly unrelated associations with snakes, law and idolatry.
- Rabbi Gil Student posted a link to a Jewish Family Law Conference to be held at Fordham University Law School on February 7-8. The conference sessions seem designed to cater to the full spectrum of religious philosophies. Since I’m unable to comment on the general tenor of the conference, I am simply posting the link to Hirhurim. If I hear anything new about it, I will pass along the information.
- The one thing everyone can agree on about taxes is that it shapes behavior. Rick Newman proposes 13 great taxes that should be imposed to improve our social wellbeing, including the Jesus Tax (after Lloyd Blankfein, the Goldman CEO) to be paid by any individual who says he’s acting on God’s behalf but can’t prove it; the Overexposure Tax, to be paid by any president who shows up on TV more than five times per week; and the Twitter Tax, a $1 tax on every pointless Tweet.
I suppose some principled right-wingers might argue that the Jesus Tax and the Overexposure Tax constitute double taxation and would violate substantive due process if they thought substantive due process was a constitutional right rather than an oxymoron.
It was widely reported that the NYPD will be “cracking down” today on the use of cell phones by drivers without a hands-free device. According to NBC News “The 24-hour initiative will begin at midnight on Thursday, and will span across the five boroughs. Those caught using a hand-held device while driving will be fined $130, and as in the past, officers will be relentless and accept no excuses.”
A recent decision by the Appellate Term, Second Department, may provide a valid defense to many motorists caught in the ticket blitz. In that case, the defendant was convicted after a trial of driving her vehicle while using a mobile telephone (Vehicle and Traffic Law § 1225-c). The court overturned the motorist’s conviction and clarified several aspects of the applicable law:
1. The statute makes it unlawful for a person to operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion (emphasis added).
2. Vehicle and Traffic Law defines a “hands-free mobile telephone” as “a mobile telephone that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such mobile telephone, by which a user engages in a call without the use of either hand, whether or not the use of either hand is necessary to activate, deactivate or initiate a function of such telephone” (emphasis in decision).
3. ” Engage in a call’ shall mean talking into or listening on a hand-held mobile telephone, but shall not include holding a mobile telephone to activate, deactivate or initiate a function of such telephone” (emphasis in decision).
According to this decision:
1. A motorist should not get a cell phone ticket if not actually driving.
2. A motorist should not get a ticket for holding a cell phone while dialing a number or hanging up, only for talking or listening while holding a phone.
As a practical matter, this means that you may hold the phone to dial a number, activate the speakerphone or Bluetooth device, place the phone down and talk.
You can read the decision here.
To follow on yesterday’s post regarding Rav Yisrael Moshe Hazan’s explanation of the word “nahalah,” the following is from Dayan Dr. I. Grunfeld, The Jewish Law of Inheritance:
As to the inner meaning of the other word used by the Torah in connection with inheritance, namely ירושה (yerushah), R. Hazan is not quite sure. He suggests a theory, and expresses the hope that Hebrew linguists will support that theory. Yerushah, he thinks, is derived from the word רש (rash) meaning poor or dispossessed, and indicating the legal fact that after death a person can no longer dispose of his earthly goods which, with his last breath, are transferred instantaneously and automatically to his heirs.
The concept, again, is that yerushah is not a transaction or a voluntary transfer of property from the morish to the yoresh that one can control. The change in ownership is instantaneous, involuntary and happens entirely according to the dictates of the Torah, regardless of the wishes of the deceased.
In The Jewish Law of Inheritance, Dayan Dr. I Grunfeld discusses at great length the sefer Nahalah LeYisrael and its author, Rav Yisrael Moshe Hazan, the Chief Rabbi of Rome at around 1850. Dayan Grunfeld writes:
R. Hazan’s work is one of the most brilliant expositions extant of the Jewish Law of Inheritance and its underlying principals and ideas. It starts by analysing the concepts nahalah and yerushah, both philologically and conceptually. The Hebrew word נחלה (nahalah) is derived from the word נחל (nahal), which means river or stream. A nahalah or inheritance cannot be compared to either a purchase or a gift. In both cases, prior to the legal transaction, the purchaser or donee had no claim or legal relationship whatsoever to the seller or the donor or the objects of the purchase or gift. In the case of nahalah, however, the relative, who is the legal heir according to the Torah, had a claim to the estate ever since he was born. His right to the estate is an original and natural one. The expression used by the author is זכות עצמית שיש ליורשים בגוף הנכסים מעיקרא, that the inheritance is an original right (not a derivative one) which rests on the body of the estate in favour of him who is the legal heir. At the moment of death of the one who transmits the inheritance, that original right flows like a river to the one who possessed it from the beginning. The original right of the heir has always been there, though dormant, and at that moment of death of the one who transmits the inheritance to the heirs, the dormant right revives. As R. Hazan points out in his work, the legal position which is inherent in the Hebrew word נחלה can be symbolically expressed by applying to it the biblical verse כל הנחלים הולכים אל הים, all the rivers run into the sea, the ‘sea’ being the legal heir to whom the inheritance flows by a natural process as a river flows into the sea.
This is a beautiful example of a Hebrew word carrying the essence of the concept it signifies.
The comparison of the right of yerushah to the natural force of a flowing river stands in sharp contrast to the “freedom of testation,” the idea that one has the right to direct the disposition of assets upon death as he or she wishes.
The Bais HaVaad Institute of Talmudic Law is presenting a seven part internet lecture series on halachic wills and estates.
There are four remaining lectures, which will cover the following topics:
- How to Write a Halachic Will
- Trusts and Foundations
- Eldercare in Halacha
- Developmental Disabilities and Guardianships
The first two lectures — The Torah’s Outlook on Proper Estate Distribution and The Halachic Implications of a Civil Will, both presented by Rabbi Ari Marburger — are available for download from the Bais HaVaad’s audio library.
Michoel Lipman on the emancipated Jewish slaves’ entitlement to borrow (for keeps) wealth from their Egyptian neighbors.
A very interesting story, but a very dubious claim, that an enormous loan made by Zechariah and Elazar Levy, two Iraqi Jews, to Queen Victoria, is now due to be repaid to their heirs, but evidence of the loan is being covered up by the British government. Proving the family tree seems to be as difficult as proving the loan.
Malcolm Gladwell argues that contrary to the common perception that entrepreneurship is about taking risks, successful entrepreneurs are actually risk averse. They look for the sure thing in which they have a clear advantage, and do the same transaction over and over. As always, Gladwell is interesting to read, but he seems to miss the point that most people would consider it a great risk to act contrary to conventional wisdom. Many people did in fact believe the rise in home prices was a market bubble. Few people would have bet their careers on it like John Paulson, a hedge fund manager profiled in the article, regardless of the data accumulated.
The question of whether wills are recognized by Halacha involves some of the fundamental concepts of Halacha (Jewish law) under a secular legal system. Rabbinic responsa regarding specific conflicts between the Jewish Law of Inheritance and the law of the land date back at least 700 years to a famous responsum by the Rashba (Rabbi Shelomo ben Aderet), and likely much earlier than that. The Halachic discussions continue today. One notable work dealing with the challenges of preparing a modern estate plan which conforms to Halacha is The Jewish Law of Inheritance, the final work by Dayan Dr. Isidor Grunfeld of the London Beth Din (Jewish court).
Here’s a quick overview of the issue:
There are two distinct questions regarding the Halakhic status of wills and trusts. First, are wills and trusts recognized as valid instruments by Jewish law? Second, if they are, or if estate plans can be made to be Halakhically valid, should they be used to leave property to someone other than those entitled to inherit under the Jewish Law of Inheritance?
Many, if not most, leading Halachic authorities throughout history consider a will to be an invalid document where it contradicts the order of succession laid out by the Torah. This is because both the will and the Jewish Law of Inheritance become effective at the same instant — the moment the testator (the person making the will) dies. According to these opinions, the Jewish Law of Inheritance prevails and the will is ignored. In fact, according to many opinions, simply executing a will is prohibited as a diversion of assets from the rightful Halachic heirs (the Talmudic prohibition of ha’avarat nahala) in a manner enforceable in a secular court.
A common solution to the problem is for the testator to separately sign a note of indebtedness to the non-Halachic heirs in an amount in excess of the estate. The note states that the debt is satisfied if the halachic heirs accept the terms of the will, essentially forcing the Halachic heirs to choose between the will and the note, with the will obviously being the better alternative for the Halachic heirs. Halacha allows a debtor to create an enforceable debt without an underlying reason for the debt. The note probably has no validity in a U.S. court.
There are many other related Halakhic issues to deal with. Does dina demalkhuta dina (the law of the land is the law of the Torah), itself a complex question, apply to the Jewish Law of Inheritance? While one can distribute estate assets during life by giving gifts, according to many opinions such distributions may be limited to assets already owned by the person making gifts. Furthermore, regardless of whether the methods are Halachically sanctioned, at what point does providing for non-Halachic heirs rise to the level of diversion of assets?
I’d be happy to discuss this topic further, so long as it is understood that there are divergent opinions at every step of the way, and that one must consult a Halachic expert for a practical application of these laws.
There will be an introduction. We haven’t put up a single post and we’ve already been asked about the scope of this blog. Short answer: we’ll figure it out as we go along.
But we aren’t standing on ceremony, and we’ll talk without an introduction. Besides, right now it’s just the two of us, and we already know each other.
To get things going, I am re-posting a few entries I made on my trusts and estates blog on halacha and estate planning. They barely scratch the surface, but hopefully this will be the forum to discuss these issues in greater depth.
Surrogate Calvaruso of Monroe County issued a decision in Matter of Feller on January 4, 2010, worth reading for its summary of the burdens of proof and presumptions that objectants to a will must overcome to survive summary judgment.
In Feller, the decedent’s will left her estate to 10 charities and 4 individuals in equal shares. Eight of her 11 distributees (those who would inherit her estate in the absence of a valid will) filed objections to the will based upon due execution, testamentary capacity and undue influence. The Attorney General, on behalf of the charities, filed a motion for summary judgment in support of the validity of the will. The court rejected all claims by the distributees, granted summary judgment and admitted the will to probate.
Due Execution
The claim that the will was never properly executed was based on the fact that the testatrix had only responded in the affirmative to the attorney’s queries regarding the request that witnesses sign the will, and that she had not herself requested that the witnesses sign the will. The court rejected this claim:
Attorneys routinely lead their clients through the will execution formalities in order to ensure that the requirements of EPTL 3-2.1 are satisfied in order to qualify a document as last will and testament entitled to be admitted to probate. Such publication and instruction of a request is not required to be in any “ironclad ceremonial or ritualistic language.”
Testamentary Capacity
The objectants also claimed that the testator lacked testamentary capacity at the time she executed her will. The court found that the objectants failed to offer sufficient evidence to raise a triable issue of fact. The court wrote:
Proponent [of the will] bears the burden to prove testamentary capacity at trial. For purposes of a summary judgement motion, once a proponent makes a prima facie case for probate, the burden switches to the objectant to show a triable issue of fact….
There is a presumption of testamentary capacity when a will is drafted and the execution is supervised by an attorney, particularly when the evidence indicates that the testatrix executed the will only after careful review and discussion of its contents. Here, objectants have failed to raise competent evidence creating a genuine issue of fact to overcome the presumption.
Undue Influence
The court also rejected the claim of undue influence because objectants failed to present any evidence of undue influence:
At a minimum, the objectant must make a showing of actual acts of undue influence, including time and place of the occurrence….
Though undue influence is typically proved by circumstantial evidence rather than direct evidence, this does not preclude summary judgement where a material issue of fact has not been shown. In fact, it is proper for the Surrogate to issue summary judgement where objectant has not made out a prima facie case of undue influence. Where a reasonable conclusion other than undue influence is supported by the facts, it is improper to conclude that undue influence existed:
[Undue influence] may be proved by circumstantial evidence but the circumstances must lead to it not only by a fair inference but as a necessary conclusion. To avoid the will of a competent testator on the ground of undue influence, the contestant must show facts entirely inconsistent with the hypothesis of the execution of the will by any means other than undue influence. In re Will of Henderson, 253 A.D. 140, 145 (1937).
The full text of the decision can be read here.
