(2006/5767)

(assisted by  Martin M. Shenkman, Esq.) 

In the previous issue, we noted that most Poskim concur that the rule of Dina Demalchuta Dina has no impact on the Halachot of Yerushah and is therefore not a viable means of making one’s will Halachically acceptable.  There is, however, another potential means of distributing assets without violating Halacha- the rule of Mizvah LeKayeim Divrei HaMeit, the Mizvah to carry out the wishes or commands of the deceased.  In this issue, we shall discuss the parameters of this rule and see if it is a relevant solution to the problem of non-Halachic heirs receiving a share in the estate.  Once again I thank attorney Martin M. Shenkman for his assistance in the preparation of this series.  However, I assume sole responsibility for any mistakes that might appear in this and all of the other essays in this series.   

Mizvah LeKayeim Divrei HaMeit 

The Gemara (Gittin 14) articulates the principle that one must obey the commands of the deceased.  The source for this rule is Yosef HaTzadik, who honored his father Yaakov's command to bury him in the Land of Israel.  The Mordechai (Bava Batra at the conclusion of the eighth chapter) explains that the Gemara intends this rule to mollify the anxieties of the seriously ill by assuring them that others will honor their instructions should they expire (see Teshuvot Maharsham 2:224, who discusses whether this rule is of Biblical or Rabbinic origin). 

The Shulchan Aruch (Choshen Mishpat 252:2) rules in accordance with the opinion of Rabbeinu Tam (cited in Tosafot Gittin 13a s.v. VeHa), limiting the applicability of this principle to asset transfers in a situation where the donor had deposited assets with a third party before his death.  Although many Rishonim dispute this ruling, the Shulchan Aruch codifies Rabbeinu Tam's view as normative Halacha.  (For a discussion of the basis for Rabbeinu Tam’s opinion, see the sources cited in Pitchei Choshen 8:4 footnote 82.) 

Accordingly, the rule of Mizvah LeKayeim Divrei HaMeit does not apply to post death distribution of assets under a secular last will and testament because the money and property involved are not deposited with a third party until after death. An attempt to "deposit" assets after death with a third party is ineffective because the Halachic requirements for distribution will have already been triggered at the time of death.   Interestingly, Rav Feivel Cohen wrote to me that money deposited in IRAs is considered to be deposited in the hands of a third party, and Mizvah LeKayeim Divrei HaMeit would apply to such assets even according to Rabbeinu Tam.  The same might apply to life insurance and retirement assets other than IRA’s. 

According to the Ran (Gittin 5b in the pages of the Rif), the rule of Mizvah LeKayeim Divrei HaMeit applies only to adults.  Minor heirs are not obligated to honor the requests of the deceased.  Thus, the rule of Mizvah LeKayeim Divrei HaMeit does not solve the problems inherent in a secular will if there are minor heirs, even according to those who disagree with Rabbeinu Tam.  (For further discussion and debate concerning this point see the sources cited in Pitchei Choshen 8:4 footnotes 82 and 87.)   

Responsa of the Binyan Tzion and Achiezer 

Despite the fact that the Shulchan Aruch accepts the ruling of Rabbeinu Tam as normative, some major Acharonim do not entirely dismiss the dissenting views in the Rishonim.  An individual posed an interesting question to Rav Yaakov Ettlinger (Teshuvot Binyan Tzion Hechadashot 24). A testator named the questioner as a beneficiary to inherit under a secular will, and the civil courts gave him money as stipulated in the will.  The questioner wanted to know if Halacha entitles him to keep the money in light of the fact that he is not a Halachic heir. The questioner/inheritor thought that Halacha would require him to return the bequests to the Halachic heirs. Rav Ettlinger replied that he could keep the money.  Since the questioner is the Muchzak (the one in possession of the object in question), the burden of proof falls upon one who seeks to exact the money from him, i.e., the Torah heirs.  Accordingly, since many Rishonim (including the Rosh and the Ramban) disagree with Rabbeinu Tam, the questioner may claim that he is abiding by the opinions that reject Rabbeinu Tam's conclusion, and it is upon the Halachic heirs to prove that Rabbeinu Tam is correct.  Thus, the Muchzak can claim that he has the right to retain the bequests made to him under the secular will in accordance with the Rishonim who rule that Mizvah LeKayeim Divrei HaMeit applies even to property that the donor did not deposit with a third party.

Rav Chaim Ozer Grodzinsky (Teshuvot Achiezer 3:34) is inclined to endorse Rav Ettlinger's ruling, but notes the dissent of the Teshuvot Har HaMor (number 39) and Teshuvot Chessed LeAvraham (C.M. 43). Rav Chaim Ozer adds the highly significant point that even Rabbeinu Tam concedes that regarding Tzedakah, the rule of Mizvah LeKayeim Divrei HaMeit applies even if the testator did not deposit the money in the hands of a third party.  Rav Chaim Ozer suggests applying the rule of Amira LeGavoha KeMesirato LeHedyot Dami (Kiddushin 28b) to the Halachot regarding the obligation to honor the orders of the deceased. This means that a verbal promise made to Hashem is the equivalent of handing an object to an ordinary individual in that both are binding and irrevocable. Accordingly, when a testator assigns money in a will to Tzedakah, the Halacha might regard this as the equivalent of him depositing the money in the hands of the charity, which even Rabbeinu Tam would accept as a valid transfer.

Rav Chaim Ozer does not issue a definitive ruling regarding the opinion of the Binyan Tzion.  However, in a posthumously published collection of his letters (Kovetz Igrot Achiezer, Divrei Halacha number 25), Rav Chaim Ozer writes that the practice of Batei Din is to honor secular wills probated in civil courts, and the Batei Din even appoint an executor to distribute the deceased’s assets in accordance with the secular will.  Dayan Grossnass of the London Beth Din (Teshuvot Lev Aryeh 2:57) asserts that Rav Chaim Ozer’s leniency does not apply if the assets were distributed by a civil court appointed executor.  In fact, he rules that the money received by a non-Halachic heir from a secular will probated and distributed by a civil court is considered to be theft.  One should consult with his Rav regarding this matter, as it is not clear if this is the conclusive interpretation of Rav Chaim Ozer’s words. 

A New Practical Solution 

We must emphasize that Rav Ettlinger and Rav Chaim Ozer do not condone Lechatchila (ab initio) sole reliance upon a secular will.  They merely argue that Bedieved (post facto), the legatees may keep the money distributed to them in favor of the Halachic heirs.  Accordingly, the principle of Mizvah LeKayeim Divrei Hameit does not sanction the use of a secular will alone and should not be relied upon as a solution to the Halachic requirements of Yerushah.

A new suggestion may provide a Halachically viable solution to the Yerushah issues in a manner that is consistent with common secular legal and estate planning for many people. This involves establishing a revocable living trust, a contractual arrangement between a person as the grantor forming the trust, preferably that person and another person as co-trustees managing the trust, and he and his family members as beneficiaries to receive the economic benefits of the trust. This approach to a living trust is fundamentally different from the more simplistic approach of most living trusts in which one would be the sole grantor, trustee and beneficiary until death. The latter approach is less likely to be respected as a valid entity under Halacha. If the former kind of trust can be regarded as a legal entity (a third party) by Halacha, and the subsequent transfers of one's assets to such a trust characterized as lifetime gifts, this commonly used secular planning technique may afford a new method of complying with the Torah requirements concerning Yerushah.

Rav Feivel Cohen wrote two letters to me concerning this issue.  In the first letter, he wrote that Halacha does not recognize a trust as a legal entity per se.  Merely placing one’s assets in a trust is not regarded as having placed the money in the hands of a third party.  Rav Cohen explained that he believes that money deposited in a trust still belongs to the grantor according to the Halacha, since the grantor can revoke the trust at any time that he wishes to do so.  This approach is hardly surprising given that Poskim in general do not recognize legal entities that lack substance.  For example, Rav Moshe Feinstein (Teshuvot Igrot Moshe Orach Chaim 1:90) does not permit a store to operate on Shabbat merely because its owner incorporated the business.  Similarly, Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 1:28) rules that a person is not shielded from Ribbit (interest) restrictions simply because he borrows money from a corporate entity.  If Jews control and run that corporate entity, the Ribbit prohibition is violated.  By the same token, Rav Mordechai Willig told me that Avodah Zarah or Chametz on Pesach in an estate must be disposed of by the Halachic heirs, for they cannot claim that the estate owns the Avodah Zarah or the Chametz on Pesach. 

In the second letter, Rav Cohen wrote that if a trust has a co-trustee named who can legally spend the money in the trust on behalf of the beneficiaries, the money is considered to be deposited in the hands of a third party, allowing the application of Mizvah LeKayeim Divrei HaMeit.  Rav Cohen considers this form of a trust to have more substance, granting it recognition as a separate entity.  This major ruling provides a practical mechanism to leave assets to non-Halachic heirs in a manner that is consistent with Halacha.  Rav Asher Weiss of Jerusalem told me (after a Shiur he delivered in August 2006 at Congregation Rinat Yisrael in Teaneck) that he believes that Rav Cohen’s ruling is correct.  One should consult with his/her Rav and attorney to see if this is a viable option for his estate plan.   

Kibbud Av VaEim and Moral Considerations 

One should also consider that even in a case where Halacha does not technically mandate honoring the wishes of the dead, one may have an ethical obligation to act Lifnim Meshurat HaDin (beyond the letter of the law) and honor the wishes of the dead (see, for example, Teshuvot Maharsham 2:224 and Rav Ezra Basri’s Sefer HaTzavaot p.12).  Rav Yaakov Kaminetzky (cited in Emet LeYaakov p.455) rules that even though, strictly speaking, one is not obligated to honor a secular will that is Halachically invalid, it is nevertheless “Hiddur Mizvat Kibbud Av VaEim”, an enhanced level of fulfilling the obligation to honor one’s parents, to do so. 

In practice, this means that if one’s parents directed in the will that the estate be divided equally among sons and daughters, the Halachic heirs should “gift” their Halachic entitlement to the non-Halachic heirs.  This can be accomplished very easily with a Kinyan Sudar, a transaction that is effected by the beneficiary or his agent giving symbolic consideration to the grantor, which most are familiar with from the sale of Chametz before Pesach and the execution of the Ketubah before a wedding.  It is advisable for a person to ask his Rav for help in executing the Kinyan Sudar properly.  One should consult his attorney regarding the tax consequences of performing such a Kinyan.  If, however, the Halachic heirs insist on following the strict letter of the law and are unwilling to gift portions of the estate in accordance with the will to the non-Halachic heirs, the problem remains unsolved.  Thus, there is a need for a means for non-Halachic heirs to inherit even according to technical Halacha. 

I once posed a related question to Rav Zalman Nechemia Goldberg.  A testator dictated (in his secular will) that money be given to a specific “secular” Jewish charity (an Israeli hospital that serves an overwhelmingly secular Jewish community).  The testator’s children thought that the money instead should be given to a “religious” Jewish charity, and asked if they could deviate from the wishes of the deceased.  The children felt that the secular charity had a much larger pool of potential donors, and the religious charities had more of a need for the money.  Rav Zalman Nechemia ruled in accordance with the aforementioned decision of Rav Chaim Ozer that money designated as Tzedakah must be given even though the will is Halachically invalid.  Rav Zalman Nechemia added that it is improper to change the charity to one other than that designated by the testator.   

Conclusion 

The principle of Mizvah LeKayeim Divrei HaMeit has both a technical Halachic dimension as well as an ethical one (also see Ramban to Gittin 13a s.v. LeOlam).  The technical dimension of Mizvah LeKayeim Divrei HaMeit can serve as a vehicle to facilitate non-Halachic heirs receiving a share in an estate without violating Halacha in certain limited circumstances.  In many cases, though, it is an inadequate method to allow non-Halachic heirs to receive their share in an estate.  Although there remains an ethical obligation to honor a secular will, there is still the need for a mechanism that would allow non-Halachic heirs to inherit in all situations.  The mechanism which has been presented in this generation, the contemporary variation of the classic Shtar Chatzi Zachar, shall be discussed in our next issue.