Post by Sapphire Capital on Sept 24, 2010 22:43:46 GMT 4
Excusing Harmless Error in Will Execution: The Israeli Experience
Samuel Flaks
Estate Planning and Community Property Law Journal, 2011
Abstract:
This article is a study of the harmless error rule curing the formal execution of wills in Israel. The Israeli rule has been persistently misunderstood in the English language literature. The article reports the author’s examination of the original Hebrew language sources. Despite the claim of American reformers that Israel possessed a successful harmless error rule, the Israeli will execution statute was construed by the courts to require strict compliance with certain will execution formalities. Recently, the Israeli will execution statute has been amended. The statute now requires strict compliance with the requirements that a proffered document be in writing and that it is presented by the testator as a will to two witnesses. All other will execution flaws can be cured if a court has “no doubt” that a proffered document was intended by the testator to be a will. A survey of the case law applying the new statute indicates that this rule, which amounts to a harmless error rule with threshold requirements, will generally protect the authentic testamentary intent of testators. American reformers who are frustrated with strict compliance with Wills Act formalities but fear the possible abuses of a harmless error rule can use the current Israeli statute as a model.
papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1675937_code1004422.pdf?abstractid=1675937&mirid=2
Samuel Flaks
Estate Planning and Community Property Law Journal, 2011
Abstract:
This article is a study of the harmless error rule curing the formal execution of wills in Israel. The Israeli rule has been persistently misunderstood in the English language literature. The article reports the author’s examination of the original Hebrew language sources. Despite the claim of American reformers that Israel possessed a successful harmless error rule, the Israeli will execution statute was construed by the courts to require strict compliance with certain will execution formalities. Recently, the Israeli will execution statute has been amended. The statute now requires strict compliance with the requirements that a proffered document be in writing and that it is presented by the testator as a will to two witnesses. All other will execution flaws can be cured if a court has “no doubt” that a proffered document was intended by the testator to be a will. A survey of the case law applying the new statute indicates that this rule, which amounts to a harmless error rule with threshold requirements, will generally protect the authentic testamentary intent of testators. American reformers who are frustrated with strict compliance with Wills Act formalities but fear the possible abuses of a harmless error rule can use the current Israeli statute as a model.
papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1675937_code1004422.pdf?abstractid=1675937&mirid=2
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