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Shabbat Parashat Lech Lecha| 5768
A Will Without Witnesses - Based on Halacha Psuka vol. 33 - Condensation of Piskei Din Rabbaniim - vol. I - pp. 23-31
Case: A man awaiting serious surgery wrote a handwritten, unsigned will that awarded much of his property to his wife should he die. The man died days after the surgery, and his widow produced the will. The pertinent part of the will reads: “If something, Heaven forbid, happens to me, everything in the house belongs to my wife and none of my brothers has permission to touch them. The second half of the stores in the commercial center, are also, Heaven forbid, given to my wife.” The deceased’s brothers, who are inheritors on whatever the will does not halachically cover reject the will’s validity.
Ruling: The halacha is that “the words of a shechiv merah (one in danger of imminent death) are as if they were written and delivered.” Therefore, the will in question ostensibly does not require a kinyan (act of acquisition). This is a rabbinic law, instituted out of fear that such a person’s distress from fear that his wishes will not be honored can cause his death. Generally this applies only when the shechiv merah gives away all of his property, which indicates that he is acting out of fear of death (Shulchan Aruch, CM 250:1-4). In this case, he transferred only part of his property. However, it is clear that the deceased acted out of fear of death because he repeated the phrase, “If, Heaven forbid…” Therefore, even a partial transfer works without a kinyan (ibid.:7).
The wording “belongs to my wife” works either as a present or an admission that the property is hers (see Shach 253:2 and Rama 250:3), and the language of “given to my wife” is valid.
The Maharshdam and Mabit dispute whether a statement by a shechiv merah without witnesses works (see Ginat Veradim 5:12). The Maharshdam, who rules that it does not work, reasons that, given the lack of witnesses, he may not have been fully serious. Therefore, if the inheritors admit that there was intent to transfer, it is valid (see ibid.). The Rama (CM 81:17) says that a handwritten admission without witnesses is valid only if he handed it over. The Shach (81:45) says that it does not have to be known to be given to the recipient, and as long as it is in the recipient’s domain, the admitter cannot get out of the admission. The problem here is that the person controlling the document is the wife. Usually we say that a wife’s control of an object that had belonged to her husband is insufficient evidence that her husband gave it to her (see CM 62). Nevertheless, there are two reasons to validate the document: 1) If one makes a clear accounting of what he wants done with his property and puts it with his important documents it is binding (Mahari Halevi II, 87). 2) The Rashba (in the context of a get) says that one would not allow his wife access that she could use to her benefit if he did not want her to have it.
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