Rabbi Meir Orlian
Writer for the Business Halacha Institute
Q: I read the information packet for the BHI initiative in which you help people formalize their wills according to halachah, in an effort to prevent uncertainty and strife upon a person’s passing. I noticed that it stated that I do not have to deposit the document with anyone else, even with one of my heirs; I can just leave it in a drawer.
I have heard, however, about a din Torah that occurred after a will was discovered in the house of a deceased person, and beis din invalidated it because it had not been deposited with any of the beneficiaries — even though there were proper witnesses and kinyanim made during the draft of that will.
Can you explain why this would happen and how you circumvent this possibility?
A: First let’s address the case you mentioned. The beis din ruled according to the halachah, codified in Shulchan Aruch (Choshen Mishpat 250:25), that if a shechiv meira (deathly ill person), or even a healthy person, who writes a will stipulating that he may renege and change his instructions (Tur ibid. 250:42, and Taz ibid. 25) and does not give it to one of the beneficiaries or someone else who can acquire it on their behalf and safeguard it for them, that will is null and void — even if it is signed by valid witnesses and kinyanim were made to formalize it. The reason is that we are concerned that perhaps at some point, the person regretted his distribution of his assets and decided not to follow through on that will. We wouldn’t worry about his regret if he deposited it with someone else, because he would have informed that person.
Now, the Shulchan Aruch (Orach Chaim 153:19) cites Maharik (161), who states that if a handwritten note was found among a person’s possessions stating that he is consecrating some objects to a shul, we must fulfill that pledge, and we are not concerned that perhaps he did not fully commit until he actually gave them to the shul. He explains that because this was a handwritten note, it differs from a contract written by a sofer or by witnesses. In the latter case, it is possible that the person did not fully commit to the transaction, and the only reason he wrote the contract was because he happened to have had access to a sofer or witnesses who could prepare or validate the contract. But if the note is handwritten, we assume that its author would not write something morbid about his demise unless he is certain about what he wants to do, so we are not concerned about him later regretting his gift (see also R’ Akiva Eiger 146, cited in Pis’chei Teshuvah 250:11; Shu”t Chasam Sofer, Choshen Mishpat 137).
In regard to BHI’s initiative, there are two options available. One option is for the person to set up the will on his own, without witnesses. If a person chooses this option, he obviously did not do so solely because he had access to a sofer or witnesses. Even if we might be concerned that perhaps he wasn’t computer literate and he had to process the document when he had help, he still had no reason to sign it until he fully committed himself to whatever is contained in his will. We can therefore safely assume that the document is valid.
The other option involves having the document signed by witnesses. This option does raise the possibility that the person might have the document signed because he has witnesses that he was comfortable asking to sign it. However, he hasn’t yet fully committed to the contents of his will, and perhaps he might regret his distribution of his assets.
The poskim have written, however, that if we know that the person who wrote the will deliberately avoided giving it to the beneficiaries, choosing to hide it so as not to cause pain to any of his heirs, then the document is valid (Shu”t Maharsham 2:224[19], based on Sma 250:60).
Even without that assumption, however, if a person writes in a contract that his intention is to fully commit to it and that even if the contract is found among his possessions, it should still serve as valid proof of his intentions, then there is no longer any concern that he would have reneged (as explained by the Urim v’Tumim, 65, Urim 54). This phraseology has therefore been adopted in many wills, and our BHI contract contains the following clause: “This document shall constitute full evidence even if it be found in my possession and not yet released from my hand.”
Our document is therefore valid, even if you deposit it in your drawer.
