(2003/5763)
A number of years ago, Kol Torah published a long series of essays on wills and Shtar Chatzi Zachar that I wrote jointly with attorney Martin M. Shenkman. This series prompted a number of individuals to pose quite a few questions regarding this area of Halacha. I posed these questions to Rav Feivel Cohen of Brooklyn, New York who is considered a leading authority in this area. In this essay, I will present a number of the rulings that he issued to this author.
Introduction – Wills and Shtar Chatzi Zachar
Many wills today include bequests to individuals who are not defined as Halachic heirs. For example, parents want daughters to receive a full share in the will and husbands (especially from first marriages) usually want their wives to inherit all of their estate. There is a relatively simple way to make such a will conform to the Halacha - the Shtar Chatzi Zachar that Jews have been utilizing for centuries to present daughters with a share of the estate as recorded by the Rama (Even Haezer 90:1 and Choshen Mishpat 281:7 ).
In the modern context, this is executed as follows. One draws a will that is valid according to the laws of the land. Then he writes a Shtar Chatzi Zachar as a supplement to the will. The Shtar Chatzi Zachar states that the testator assumes an obligation of an extraordinarily large amount of money (that exceeds the expected size of the estate) to his wife or daughter that will take effect a moment before death. A condition is made that the obligation will be waived if the Halachic heirs honor the dictates of the will.
Thus, the Halachic heirs inherit what they are Halachically due, but they also inherit a debt that exceeds the amount of money they are Halachically entitled to. Thus, Halachic heirs are motivated to honor the dictates of the will to gift the money to the beneficiaries of the will who are not Halachic inheritors. The Halachic heirs would prefer to honor the will than be saddled with a huge debt. The Halacha is honored because the Halachic inheritors receive their due. The will is also followed, because the Halachic heirs gift the money to those named in the will. This is merely a basic sketch of the issue and one may consult the back issues of Kol Torah (1999-2000) for a detailed discussion.
The Obligation to Make a Will
A reader posed the following question. Why should I write a will? I have only sons and I trust that they will split the estate in accordance with the Halacha. An answer is that, first, he wants his wife to inherit his estate should he predecease her and the wife is not a Halachic heir. Second, is that if one dies without a will, the state distributes the money according to its laws, which do not conform to Halacha. One must assume that the children will subsequently distribute the estate in accordance with the Halacha. However, tax consequences will strongly discourage the children from doing so. One places a great temptation before his children to violate the Halacha in such a circumstance, as conforming to the Halacha in such a case might cost a large sum of money. Such a scenario can be avoided by writing a will and supplementing it with a Shtar Chatzi Zachar. Indeed, Rav Feivel Cohen wrote to me that it is an obligation to write a will and a Shtar Chatzi Zachar supplement to insure that money that he wants distributed to Tzedaka will be given as he intends. In addition, one who fails to write a will, violates Lifnei Iveir Lo Titein Michshol (the prohibition to cause others to sin, Vayikra 19:14) as he places a great temptation upon his family to violate the Halachot regarding the distribution of the estate. Indeed, Rav Yitzchak Elchanan Spektor (in a responsum published in Teshuvot Mate Levi no. 13) rules that one must write a will to insure that his heirs abide by the Halacha regarding the division of one’s estate, in a situation of concern that the children will not abide by the Halacha. Rav Yitzchak Elchanan bases this assertion on a Tosafot (Bava Metzia 30b s.v. Afkira) that teaches that one must take proactive steps to insure that others do not violate the prohibition of theft.
The Age to Write a Will
Another reader asked at what age is one required to write a will. The Chayim Ubracha Limishmeret Shalom (entry Tzavaa) writes that the proper age to write a will is the age of fifty. He bases this on the Pasuk (Vayikra 25:13) that states that in the fiftieth year one returns to his ancestral land. He homiletically interprets this verse as teaching that when one reaches the age of fifty, he should begin contemplating his soul’s return to its ancestral home and begin to prepare for the end of life. This includes writing a will. He records that Rav Shlomo Kluger (a major Halachic authority of the mid nineteenth century) wrote a will when he reached the age of fifty. He adds, to dispel concern that writing a will is somehow a bad omen, that Rav Shlomo Kluger lived until the age of eighty six. Indeed, Rav Ezra Basri (a contemporary Dayan who sits on the Bait Din of Jerusalem) writes (Sefer Hatzavaot p.5) that writing a will with the intent to preserve peace and harmony in the family is an omen for long life.
Rav Feivel Cohen, though, in his Kuntress Midor Lidor (p.6), writes that it is especially important for parents of young children to write a will that directs who should raise the children in case of death or incapacity on the part of the parents. Without such a provision in a will, the state will decide who will raise the child (which is obviously undesirable from a Jewish perspective). Moreover, Rav Cohen wrote to that he believes that one should write a will even earlier than age fifty. He bases this on the Gemara (Shabbat 153a) that one should always consider the possibility that one might die tomorrow and plan accordingly.
May one Assume a Shtar Chatzi Zachar was Executed?
Even if a relative did not draft a Halachically proper will, it is proper and ethical to honor the dictates of the will (see Teshuvot Maharsham 2:224 and Rav Yaakov Kaminetzsky, cited in Emet Liyaakov p.455). The Halachic heirs should formally give the non-Halachic heirs named in the will the money as a gift. This procedure is relatively simple and may be accomplished by Kinyan Suddar. A Rav should supervise the transaction to insure that it is executed properly.
The question arises whether it is necessary to make this transfer if the individual who drafted the will was a Talmid Chacham. The question is whether one may assume that the Talmid Chacham executed a Shtar Chatzi Zachar, even if no such document was found among his papers. A basis for such an assumption might be the Gemara (Pesachim 4b) that writes that if a Talmid Chacham dies and leaves fruit in his container that one may assume that he removed the Trumot and Maasarot in accordance with Halacha, even if the fruit appears to have been picked on that day. The Gemara explains that we may presume that a Chaver (a Talmid Chacham who is scrupulous about Halacha) would not permit something improper to leave his hands.
I asked Rav Feivel Cohen whether one is permitted to make such an assumption that a contemporary Chaver would not have executed a will without a Shtar Chatzi Zachar supplement. Rav Cohen replied that although each case must be judged on its own merits, one may not assume as a general policy today that a Chaver executed a Shtar Chatzi Zachar. Rav Cohen explained that, regrettably, even many Talmidei Chachamim are not aware of the need to execute a Shtar Chatzi Zachar. I hope that the word will spread of the need for a Shtar Chatzi Zachar by publications such as Kol Torah and Shiurim delivered by Rabbanim and hopefully this unfortunate situation will change.
Chametz and Avoda Zara in an Estate
An executor of a will posed the following question. This observant individual was named as the executor of an estate of a non-observant relative. The executor was also a Halachic heir of the testator. The executor found Chametz before Pesach as well as what appeared to be Buddhist artifacts among the items in the estate. The executor wished to know whether he is required to dispose of the Chametz before Pesach and destroy the Avoda Zara (Rav Aharon Lichtenstein told this author that Buddhism constitutes Avoda Zara).
A possible leniency is that the civil law does not consider the Halachic heirs to own the content of the estate until the civil courts formally probate the will. Civil Law recognizes the Estate as a legal entity. As such, the estate owned the Chametz and Avoda Zara according to civil law. Rav Feivel Cohen, however, ruled that the Halachic heirs are required to dispose of the Chametz and Avoda Zara. This is because Halacha does not recognize civil law in regards to the disposition of an estate as codified by the Bait Yosef (Choshen Mishpat 26 s.v. Katav Harashba) and the Rama (C.M. 369:11) citing a responsum of the Rashba (6:254). Rav Mordechai Willig told me that he agrees with this ruling.
A Lawyer Drafting a Halachically Invalid Will
A reader who practices as an attorney who specializes in trusts and estates asked whether he violates Halacha when he prepares a will for Jewish people who will not execute a Shtar Chatzi Zachar supplement. The attorney wanted to know if he violates the Torah’s (Vayikra 19:14) prohibition to cause others to sin (Lifnei Iveir Lo Titein Michshol). Some opinions are lenient if there are many others ready and available to assist in the violation of the Torah (Chad Ivra Dinahara, see Rama Yoreh Deah 151:1). If the observant lawyer will not draft the Halachically invalid will, a myriad of lawyers will be happy to do so. However, the Rama writes that one should try to avoid relying on this lenient approach.
I have heard suggested that one does not violate Lifnei Iveir in this case since Rav Moshe Feinstein (Teshuvot Igrot Moshe Even Haezer 1:104) rules that a secular will alone is sufficient and a Shtar Chatzi Zachar supplement is not necessary. Even if one does not personally follow the opinion of Rav Moshe, nevertheless one might not violate Lifnei Iveir if the person has a reliable opinion upon which to follow. Indeed, Halachic authorities commonly cite Teshuvot Ketav Sofer (Y.D. 77) that one does not violate Lifnei Iveir in such a circumstance.
However, Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 2:35:17) rules that the lenient ruling of the Teshuvot Ketav Sofer does not apply in a situation where an individual or his Rav is convinced that the lenient opinion is in error. In our situation, the overwhelming majority of Poskim reject Rav Moshe’s ruling (Rav Ovadia Yosef, Teshuvot Yechave Daat 4:65; Rav Yaakov Kaminetzsky, cited in Emet Liykov p.455; Dayan Grossnass, Teshuvot Lev Aryeh 2:57; Dayan Weisz,Teshuvot Minchat Yitzchak 2:95; and Rav Zalman Nechemia Goldberg, Techumin 4:342-344). Moreover, they feel (as articulated by Dayan Grossnass) that the Gemara (Temura 25b) explicitly rejects this opinion of Rav Moshe. Accordingly, the leniency of the Ketav Sofer might not appear to be relevant in this situation.
A possible leniency might be based on a ruling of Rav Shlomo Zalman Auerbach. Rav Yehuda Amital and others report that Rav Shlomo Zalman instructed shuls that offer beginners services for Shabbat and Yom Tov and are concerned that participants will drive to the event, to offer home hospitality as an option for participants. It is then the choice of the participant to decline the offer and those who advertise the service are not considered to have caused a Jew to drive on Shabbat. Perhaps one might say the same applies by drafting a will. Perhaps the lawyer’s offering and informing the client of the relatively simple option to execute a Shtar Chatzi Zachar to supplement the will, eliminates the lawyer’s responsibility for having assisted the execution of a Halachically invalid will. It is the client’s choice not to supplement the will with a Shtar Chatzi Zachar.
Rav Feivel Cohen wrote to me that a lawyer may assist in the drafting of a will that will not have a Halachic supplement, if the lawyer urged his client to execute a Shtar Chatzi Zachar. He bases his ruling on a ruling of the Netziv (Teshuvot Meishiv Davar 2:31) that Lifnei Iver is not violated if it is Chad Ivra Diahara and the sin is not committed at the time of the assistance. We should note that this ruling of the Netziv is agreed to by many other Acharonim such as Teshuvot Maharsham (2:97), Teshuvot Binyan Tzion 15, and Teshuvot Igrot Moshe (Y.D. 1:72).
Conclusion
The history of Halacha is not only created by the great Halachic authorities who issue rulings. It is also created by alert lay individuals who pose the questions to Poskim. The Halacha continues to be enriched by people who earnestly seek to abide by Halacha in all circumstances and Poskim who grapple with the challenging issues that continually arise. Wills and estates are a particularly sensitive area that people should be alert to notice problems and bring them to the attention of Halachic authorities for adjudication.