Q. Dovid had vast real estate holdings. Years ago, his son, Chaim, who is in the manufacturing business, found a certain property he thought would interest his father, and offered to broker the sale and renovate the property in exchange for a twenty percent stake in the subsequent revenues. Dovid agreed to the deal.
Separately, Dovid was a silent partner in Chaim’s manufacturing business, in which he owned a ten percent stake, and each quarter, Chaim transferred Dovid’s earnings to him.
This arrangement went on for fifteen years, when Dovid suddenly stopped transferring Chaim’s twenty-percent stake in the property he had brokered and renovated. When Chaim asked his father what happened, Dovid said that he had already paid him enough in those fifteen years. Fearing that arguing about it would anger his father, Chaim asked a Rav if he was allowed to deduct the amount his father owed him due to his stake in the property from the ten percent he owed his father from his manufacturing business, without telling him about it. The Rav permitted him to do this.
Dovid was recently niftar, and his will was opened. In it, he listed all his holdings, including the property that Chaim had brokered and renovated and the ten-percent stake in Chaim’s manufacturing business. He instructed that these should all be divided evenly among his heirs.
Chaim called his siblings to a meeting and informed them what he had been doing since his father had stopped transferring his share of the property. He explained that his father had no right to split that entire property evenly, because twenty percent of it belonged to him, so only the remaining eighty percent should be divided among them.
He added that he could prove he wasn’t trying to cheat them, because if he was, he could simply have denied that his father had owned a stake in his manufacturing business, because there was no record of that partnership.
At the end of Dovid’s will, however, he wrote that if any of his heirs contest his will, they receive no inheritance. Chaim argues that perhaps this clause doesn’t apply to his claim on the twenty percent stake in the property in question, because that claim predated the will.
Is Chaim correct, or will claiming his twenty percent stake cut him out of his father’s will?
Analysis
The key to answering this she’eilah does not actually rest in whether Chaim has a valid claim to that twenty percent stake and whether his “migui” (alternative claim) makes him trustworthy, because the clause Dovid added cutting any contesters out of the will makes it unlikely that it is worthwhile for him to lay claim to his twenty percent.
The Rashba (Teshuvos HaRashba 2:293, cited in Beis Yosef 250:17, and briefly by Sma ibid. 39) discusses the following similar case: Yaakov gave a property to his son, Reuven, as a gift. After several years, he wrote a will dividing his estate among his children, and he gave that same property to his son Shimon. At the end of his will he wrote that anyone who contests his current will — whether in full or in part — will inherit nothing, and everything he was supposed to get will be divided among the other heirs.
Reuven wanted to know whether keeping the property, with the claim that his father had already given it to him and could not reassign it to Shimon, is considered contesting the will in a way that makes him lose his entire inheritance. It is possible that Yaakov reassigned that field to Shimon because he forgot that he had given it to Reuven, in which case contesting it should not make him lose his inheritance.
The Rashba writes that it seems that Yaakov did reassign that field out of forgetfulness, because if not, he likely would have written: “I want such-and-such field to be inherited by Shimon, even though I gave it to Reuven.”
Nevertheless, rules the Rashba, because Yaakov may have remembered his earlier gift when he wrote his will, the presumption that he forgot is not strong enough for us to ignore the written words of the will, which stated that if anyone contests it, he will receive nothing.
The Rashba’s logic seems even more applicable to our case, because Dovid clearly didn’t want Chaim to have an ongoing stake in the property in question. It was not mere forgetfulness that made him include that property among his other holdings and instruct that they be divided evenly among his heirs. On the contrary, had Dovid known that Chaim would contest and be awarded his stake in the property, he might have reduced his percentage in other assets. It is most likely, then, that Chaim would benefit most by not claiming his twenty-percent stake in that property, because if he does, he will be cut out of the entire inheritance.
