Category Archives for Estates

COURT OF APPEALS SAYS STOLI PERMITTED UNDER NEW YORK LAW

The New York State Court of Appeals issued a decision today interpreting New York Insurance Law to permit what are known as Stranger Oriented Life Insurance transactions (also known as “STOLI” or “SOLI”). In a typical STOLI transaction, an elderly individual is approached by an investor with the following proposal: The individual takes out an insurance policy on himself, usually for millions of dollars. The premiums, of course, are usually far more than the individual can afford to pay for any length of time. The investor pays the individual a lump sum, typically several hundered thousand dollars and the individual immediately transfers ownership of the policy to the investor, which usually establishes a trust to own the policy.  The investor/trust continues to pay the premiums, wagering that the individual will soon die and that the amount collected under the policy will exceed the premiums paid to the insurer and the lump sum paid the the individual.

Prior decisions from lower courts held that such transactions were not permitted under interpretations of NY Insurance Law and were void as against public policy as “wagering on the life of another,” when the insurance was procured by the individual solely with the intent to transfer or sell the policy to a third-party.

Additional post to follow.

Consequences of failing to consider halacha when planning an estate

What are the halachic results of neglecting to plan an estate according to halacha?

Teshurat Shai (R. Solomon Leib Tabak, Hungary, 1832-1908), chapter 159 (cited by Pitchei Choshen, Hilchot Yerushah, Chapter 1, fn 4), addressed the following situation.  A man died survived by a son and four daughters.  Pursuant to local law, the decedent’s estate was divided equally among his five children.  Some time later, one of the daughters and her husband learned that the decedent’s son was the sole halachic heir, as the decedent apparently made no halachically valid provisions to ensure that his daughters received portions of the estate.

Since the decedent’s death, however, the the value of the real estate that the daughter and her husband believed was their inheritance had appreciated.  Some of the property had been sold.  The daughter and her husband had collected income and paid all expenses associated with the property.

R. Tabak rejected the daughter’s argument that her brother had in effect gifted property to his sisters when he consented to the division of the estate between himself, a yoresh, and his four sisters, who were not yorshim.  R. Tabak wrote that the brother may have consented because he believed that local law controlled (which would be an erroneous application of dina demalchuta dina, as discussed in an earlier post).  Citing Maharik and Rashdam, R. Tabak wrote that in circumstances where the controlling halachot are commonly misunderstood, transfers are presumed to be prompted by a misunderstanding rather than by an intent to give a gift.  This principle applies even if the transferor did not affirmatively claim he never intended the transfer to be a gift.

R. Tabak therefore ruled that the original distribution of the estate was invalid, and that the property held by the sister had to be returned to her brother.  Furthermore, wrote R. Tabak, she had to pay her brother all of the income produced by the property since the distribution.  Even the income produced by the property after she had sold it had to be returned, since the sale of any real estate was invalid.  Property that had been sold and couldn’t be recovered had to paid for at its current appreciated value, not its value at the time of the decedent’s death.

R. Tabak wrote that the sister was entitled to reimbursement for expenses associated with the property, as well as for any of the decedent’s debts she had paid.

While this ruling may appear to be harsh, it is logical and not necessarily surprising.  Since according to halacha it is impossible to illegally convert real estate to one’s own possession, the brother remained the owner following the decedent’s death and was entitled to all of the income as well as the appreciation of the real estate.  His sister’s illegal or mistaken management of the property essentially created something similar to a constructive trust, where she held the property for her brother’s benefit, and was simply entitled to reasonable reimbursements for debts and expenses paid on her brother’s behalf.

It is also clear that another solution was possible.  If (and this is sometimes a big if) at the later date the yoresh is willing and capable, he can consent to an equal distribution upon his understanding that he is entitled to the entire estate.

This fact pattern has no doubt repeated itself many times over, even among people who strictly follow halacha in the course of their daily lives.  The failure to properly plan an estate according to halacha can lead to the realization many years or even decades after a legal distribution that the estate’s beneficiaries have been withholding property from the yoresh without adequate consent.  According to the Teshurat Shai’s teshuvah, not only must the property be returned, but all income and appreciation associated with real estate — even if sold — must be disgorged.

While this post is not intended to be halachic advice, one who was a beneficiary of an estate in similar circumstances should consult with a competent posek or dayan as to any outstanding obligations to the yorshim and, if necessary, for advice on obtaining proper halachic consents.

Needless to say, proper planning could avoid repeating the problem for the next generation.

New York Power of Attorney and Statutory Gifts Rider forms

Once again, New York State made changes to its power of attorney law and revised the statutory power of attorney and gifts rider forms. The changes went into effect on September 12, 2010.

The New York State Bar Association has the new POA and SGR forms for download in Word or Wordperfect, along with suggested clauses for the Modifications sections. The forms cost $20 but are free for NYSBA members.

You can download the forms here.

For more on the recent changes to the Power of Attorney law, see my posts on the New York Trusts & Estates Law Blog.

Arkaos: Litigation in non-Jewish courts

In an earlier post I discussed a teshuvah of Rav Ovadiah Yosef as to whether a non-yoresh (e.g., a daughter if the decedent leaves a son and a daughter) may claim a portion of an estate in court under local law. After summarizing Rav Ovadiah Yosef’s ruling that dina demalchuta dina does not apply, I wrote the following:

The remainder of the teshuvah addresses the serious prohibition of litigating disputes in non-Jewish courts (See Rambam, Yad Hachazakah, Sanhedrin 26:7). Rav Ovadiah Yosef writes that this applies even if the results under halacha and civil law are the same, and even if the decedent instructed his children to resolve the estate under a civil court’s jurisdiction. In a lengthy footnote, he writes that it is also prohibited to appear before a Jewish judge who will apply secular law – in fact, in such cases the disregard for the Torah is even more pronounced.

One reader objected that although I provided a citation to the Rambam, I did not quote him in context. So here it is in full, with my approximate translation, and a few comments:

כל הדן בדייני עכו”ם ובערכאות שלהן אע”פ שהיו דיניהם כדיני ישראל הרי זה רשע וכאילו חרף וגדף והרים יד בתורת משה רבינו שנאמר ואלה המשפטים אשר תשים לפניהם לפניהם ולא לפני עכו”ם לפניהם ולא לפני הדיוטות. היתה יד העכו”ם תקיפה ובעל דינו אלם ואינו יכול להוציא ממנו בדייני ישראל יתבענו לדייני ישראל תחלה. אם לא רצה לבא נוטל רשות מבית דין ומציל בדיני עכו”ם מיד בעל דינו

One who litigates before non-Jewish judges or in their courts, even if their laws correspond to Jewish law, is an evil person, and it is as though he blasphemed God and raised his hand (in arrogance) against the Torah; for it says, “And these are the laws that you should place before them” — before them (i.e., the elders of Israel), not before non-Jews; before them, not before judges who are not ordained.

When under non-Jewish rule, if one’s adversary is powerful and will not cooperate with a ruling of a Bet Din, he must first attempt to sue his adversary in Bet Din. If his adversary refuses to appear in Bet Din, he may obtain the Bet Din’s permission and sue in non-Jewish court.

The Rambam’s source is Gittin 88b, which derives the prohibition from the pasuk quoted by the Rambam, “ואלה המשפטים אשר תשים לפניהם” — “and these are the laws you should place before them.” Interestingly, however, the Gemara does not compare litigation in non-Jewish courts to blasphemy and high-handedness, and the commentators on the Rambam do not point to the Rambam’s source for such strong condemnation.

The language the Rambam uses appears to be derived from the following pesukim, said with regard to idolatry:

וְהַנֶּפֶשׁ אֲשֶׁר תַּעֲשֶׂה בְּיָד רָמָה מִן הָאֶזְרָח וּמִן הַגֵּר אֶת ה הוּא מְגַדֵּף וְנִכְרְתָה הַנֶּפֶשׁ הַהִוא מִקֶּרֶב עַמָּהּ
כִּי דְבַר ה’ בָּזָה וְאֶת מִצְוָתוֹ הֵפַר הִכָּרֵת תִּכָּרֵת הַנֶּפֶשׁ הַהִוא עֲוֹנָה בָהּ

A person who shall act high-handedly, whether native or convert, he blasphemes God; that person shall be cut off from among his people, for he scorned the word of God and broke His commandments; that soul shall surely be cut off, its sin is within it. (Bemidbar 15:30-31)

The similarity between our subject and intentional idolatry is apparent in the reason provided for the punishment — “for he scorned the word of God.” Clearly, the Rambam does not mean that litigating in a non-Jewish court is a transgression as serious as idolatry — it is not explicitly prohibited by the Torah and it does not carry the same punishment as idolatry. Nevertheless, by resolving a monetary dispute outside of the system of the Torah one turns his back on the Torah’s system of justice.

Another point worth mentioning along these lines: Rashi in Mishpatim cites a Midrash which states that we learn from the proximity of the laws of the altar to monetary laws that during the time of the Temple, the Sanhedrin were to be situated near the altar. Keli Yakar in Mishpatim discusses at great length the conceptual relationship between the altar and justice. Such connections also seem to indicate that a litigant’s abandonment of the Sanhedrin by resorting to non-Jewish courts is on some level also an abandonment of the altar, reinforcing the Rambam’s comparison of litigation in non-Jewish courts to idolatry and blasphemy.

The Rambam writes that one may only bring suit in non-Jewish courts if his adversary refuses to appear in bet din, and after obtaining bet din’s permission. There may be other exceptions that should be discussed if and when they arise, such as bringing suit to recover against a defendant who is insured — the insurance policy would be unavailable in bet din, and any chillul Hashem may be mitigated by the understood objective of the lawsuit.

So why is it that there are so many reported cases involving Orthodox Jewish litigants fighting their battles in state and federal courts? We posted on HAFTR’s appeal of a Bet Din award to a teacher. Right or wrong (and the Appellate Division said HAFTR was wrong), HAFTR had, so far as I can tell, no business seeking to have a bet din award vacated in state court.

I have no idea how the Satmar factions justify their drawn-out legal battles in state court. As I noted in a comment to Avrohom’s post on a recent decision in the Satmar litigation, something is seriously wrong when the chillul Hashem rises to the level that a state court judge feels compelled to write:

This is an enormously difficult case, involving as it does a bitter battle between two factions whose differences are extremely hard for outsiders to understand. It has produced, as Justice Barasch tells us in an epilogue to his opinion, attempts by people claiming allegiance to one faction or the other “to discredit, intimidate and improperly influence” the Supreme Court, with the result “that there are judges who would prefer to decline any assignment involving members of this group of litigants” (5 Misc 3d 1023[A], 2004 NY Slip Op 51515[U], *13, *14). I join Justice Barasch—as, I am sure, do all my colleagues—in saying that this behavior is intolerable, and in expressing the hope that the proper authorities will deal with it.

Just the other day, Judge Demarest of the Brooklyn Supreme Court issued an opinion of great interest that we’ll hopefully get to soon.

Opinion of Rav Ovadiah Yosef on yerushah and intestacy

Rav Ovadiah Yosef, in his collection of responsa, Yehaveh Daat, volume 4, responsum 65, addresses the following question: May a family member who is not a yoresh (halachic heir), but is legally entitled to a share of a decedent’s estate, claim a portion of the estate in civil court under the doctrine of dina demalchutah dina?

Before turning to his analysis, it should be noted that the teshuvah (responsum) involves the distribution of the estate of a decedent who died without a will. It does not address whether a will would be recognized by halacha or whether any halachic workaround, such as reliance on what the Rama refers to as “shtar chatzi zachar,” is appropriate.

I. Scope of Dina Demalchutah Dina

Source

The source for the doctrine of dina demalchutah dina (literally, “the law of the kingdom is the law”) is a Gemara (Gittin 10b) which discusses the validity of contracts executed in non-Jewish courts. The Gemara states that a contract that merely records the terms of an independent transaction is valid and is admissible as evidence in halacha. However, there is a disagreement as to the validity of a contract that effectuates a transaction. One opinion states that the Torah incorporates the law of the jurisdiction under the doctrine of dina demalchutah dina. A second opinion disagrees and holds that contracts executed in a non-halachic manner are not valid according to halachah.

Opinion of the Rambam

The majority of Rishonim, including Rif and Rambam, quote the latter opinion as halacha. They don’t entirely reject dina demalchutah dina, but limit its application to laws that directly benefit the government, such as taxes and customs, and not to the laws of private transactions or disputes. Shulchan Aruch codifies the halacha according to these opinions (Choshen Mishpat 68:1).

Opinion of the Ramban

Other Rishonim, including Ramban, Rashba and Rosh, disagree. They hold that civil laws enacted for good of the general population are recognized by halacha in private transactions. Rama (Ch.M. 68:1) cites this opinion as halacha.

II. Halacha

Rav Ovadiah Yosef, applying strict adherence to the opinion of Shulchan Aruch, writes that the accepted halacha (at least for Sepharadim) is that dina demalchutah dina only applies to tax and other fiscal laws, but not to laws regulating transactions or disputes between private parties. Therefore, halacha does not recognize the legal inheritance rights of a legal heir who is not a yoresh.

Rav Ovadiah Yosef continues – even according to the opinions cited by the Rama, that civil laws are generally recognized by halacha, the doctrine of dina demalchutah dina does not apply to the laws of inheritance. Civil laws are recognized by halacha only if the Torah is neutral on the subject of the law. Dina demalchutah dina does not apply if the local law contradicts halacha. As the Rama writes, “otherwise all of the laws of Israel will be nullified.”

The Bet Yosef quotes a teshuvah of the Rashba in this regard. The Rashba was asked to rule on a dispute over the estate of a deceased woman. The woman’s surviving husband claimed that pursuant to halacha he inherited the assets she had brought into the marriage. The woman’s father claimed that under local law those assets were to be returned to him, and that local law should apply under the doctrine of dina demalchutah dina.

The Rashba wrote that uprooting the laws of yerusha by relying on dina demalchutah dina effectively uproots all of the laws of the Torah. If dina demalchutah had priority over the laws of the Torah, he said, then we would have no need for the Mishnah and Talmud; we would simply teach and apply the law of the land in every situation.

III. Litigation in non-Jewish courts

The remainder of the teshuvah addresses the serious prohibition of litigating disputes in non-Jewish courts (See Rambam, Yad Hachazakah, Sanhedrin 26:7). Rav Ovadiah Yosef writes that this applies even if the results under halacha and civil law are the same, and even if the decedent instructed his children to resolve the estate under a civil court’s jurisdiction. In a lengthy footnote, he writes that it is also prohibited to appear before a Jewish judge who will apply secular law – in fact, in such cases the disregard for the Torah is even more pronounced.

IV. Conclusion

Rav Ovadiah Yosef concludes that it is forbidden for the non-yorshim to appear in secular court to claim a portion of the estate. If the yorshim wish to share the estate with the non-yorshim, they should execute halachic transfers under the supervision of a bet din.

Meaning of the word "Yerushah"

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.

Inheritance as a natural force in Halacha

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.

Halachic Wills & Estates Series by the Bais HaVaad

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.

Estate Planning, Halacha and the Jewish Law of Inheritance

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.

Will contests: surviving summary judgment

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.

Halachic perspective on the Estate of Max Feinberg

Litigation in the Estate of Max Feinberg has sparked online discussions both before and after the case was decided by Illinois Supreme Court.  The question involves the validity of a clause in a will or trust that effectively disinherits a descendant who marries outside of a given faith.  Since Max Feinberg and his wife, Erla Feinberg, were Jewish, the clause has been called the “Jewish clause,” although the Illinois Supreme Court’s “beneficiary restriction clause” is more accurate, since this is not a uniquely Jewish issue.

Surprisingly, there have been very few recent decisions from any court on the legal effectiveness of the clause, which explains the widespread attention to the outcome of this particular case.

Two lower courts held that the clause violated state public policy, which encourages marriage and discourages divorce.  The Illinois Supreme Court took a more nuanced approach and upheld the validity of the clause under the narrow facts presented.  The Court explained that in this case the distribution scheme could have been altered by will or powers of appointment during Max and Erla Feinberg’s lifetimes.  Since no interests were vested until Erla Feinberg’s death, at which point the property was distributed outright, the estate plans never acted as a restraint on marriage or as an incentive for divorce.  The Court may very well have come out the other way and invalidated the clause had the beneficiaries been given a remainder interest in a trust on condition that they marry Jewish spouses.

The case deals with the so-called Jewish clause from a legal perspective.  But how Jewish is the Jewish clause?

As Rabbi Ari Marburger points out in the introductory webcast to Bais Havaad’s Halachic Wills & Estates Series, halacha draws a distinction between a) the validity of a transaction and b) the appropriateness of an estate plan that varies the halachically prescribed order of distribution.  Just because the estate plan can be made to be halachically binding does not mean it is met with halachic approval.  In fact, whether it is ever appropriate to vary the halachic order of distribution has historically been a matter of halachic dispute.  The disinheritance of a halachic heir is more problematic, but what constitutes a disinheritance is far from clear.

In the Feinberg case, the clause operated to disinherit four grandchildren.  Since grandchildren are not halachic heirs while their parents are  alive, the clause disinheriting them is inconsequential from a halachic perspective.  Rabbi Marburger suggests that even if the clause had been directed at the halachic heirs, contemporary authorities would allow the disinheritance.  Even so, while the clause may be valid, I am not aware of any contemporary traditional halachic authority that actually advises disinheritance for any reason.

While halachic estate planning often focuses on the mechanics and halachic validity of an estate plan, the larger question of halachic appropriateness should not be ignored.  This is particularly true in the common situation of a married couple leaving their entire residuary estates to each other.  In most cases, that distribution scheme is halachically problematic, whether or not the will is accompanied by a binding halachic note of indebtedness.