Q: When my husband passed away, I was listed as the sole beneficiary of his substantial life insurance policy. Shortly after I received the insurance payment, my only son needed a large sum of money to buy a house. I lent him the money, on condition that he repay me upon request.
Several years have passed, and I don’t want to pressure him to repay me, because I don’t need the money now. But I want my daughters to inherit some of that money when I pass on. Can I instruct, in my will, without my son’s knowledge, that he must repay the loan to his sisters, or do I have to broach this subject with him even though it might be uncomfortable, especially if he is opposed to this arrangement?
A: If you own enough assets that even without collecting this loan, you can allocate to your daughters whatever amount you intend to give them, and the amount you intend to leave for your son exceeds the loan amount, then you can simply write into your will that your son inherits such-and-such amount but that the loan amount is to be subtracted from his inheritance.
But if the loan makes up the lion’s share of the inheritance, you will have to discuss the matter with him, explaining that if he does not want to repay the loan to you now, then he will have to commit to repaying the loan to his sisters according to the instructions in your will. If you do not secure this commitment from him, then even if you commit, with a proper kinyan, to have the money from the loan disbursed to your daughters, your son will still have the following valid halachic ways to evade repaying the loan.
The loan that you gave your son could have been one of two types of loans:
- milveh b’shtar — a loan given with a proper loan contract, signed by witnesses, or
- milveh al peh — a loan given without a contract (even if you received a signed document from your son, without signatures from witnesses).
If someone would like to sell or gift a loan contract, it must be done with “kesivah umesirah,” which means that the actual contract must be transferred to the buyer, and the seller must also write to the buyer, “Acquire it and all the liens associated with it” (Shulchan Aruch, Choshen Mishpat 66:1&4).
In your case, even if you take the steps of kesivah and mesirah when transferring the loan document to your daughters, it would not suffice, because after you pass away, your son will inherit you as the sole heir. Included in his inheritance will be the rights to collect the loan from himself, which he may then forgive — even if that forgiveness will cause damage to the holders of the shtar (i.e., his sisters; ibid. 66:23).
[The original owner can forgive the debt because either the Torah doesn’t validate the sale of a shtar, or the shi’abud haguf (personal liability on the borrower) remains with the seller and cannot be transferred (Sma, ibid. 55).]
If the loan was given without a shtar, then Chazal established that it can be sold only “b’maamad shlashtan,” with all the relevant parties present. This means that if Reuven has money that belongs to or he owes to Shimon, and Shimon now wants that money to go to Levi, Shimon must tell Reuven, in Levi’s presence, “Give the money you owe me to Levi” (Shulchan Aruch 126:1).
Now, according to these principles, it would seem that when your son and daughters are all in your presence, you can simply tell your son that he must give the money he owes you to your daughters whenever you tell him to do so.
There are several issues with that approach, however.
First, the Rishonim debate whether maamad shlashtan works if the borrower (or person safeguarding the money) does not want to transmit the money directly to the person he was told to pay it to (see ibid. 121:7 with Shach 28).
Second, the poskim debate whether someone who has transferred a loan owed to him to another person b’maamad shlashtan can still forgive the loan, just as we discussed in regard to the sale of a shtar (ibid. 66:29 with Shach 97 and 126:1 with Shach 10-11).
The poskim rule that the muchzak (possessor of the money) may claim kim li (see BHI# 473) that the forgiveness works. In your case, this means that after inheriting your estate, including the loan, your son may forgive the loan and your daughters will not be able to collect.
Therefore, you have no recourse other than to broach the subject and insist that your son commit to repaying the loan to your daughters after your petirah, and if he refuses to do so, you must insist he repay you now, and you can then structure your will halachically so that your daughters inherit a portion of that money.
