Senior lawyers discuss: Is a last will sent on WhatsApp valid in Israel?

He was in an isolation room. The room was dim, only slightly lit by a small night light next to the circular clock. It was well after midnight. He had been there for two weeks, and he knew there was only one nurse in the ward. He could call her by pressing the emergency buzzer. But he was tired and simply could not muster the effort to reach for it. It had been two long weeks, and the COVID-19 epidemic was intense. But he was able to reach for his mobile, which was right next to him. He wasn’t particularly old; he wasn’t ready to die. But it was clear from the news that he regularly received on his smartphone that this new disease was raging around the country, striking communities and people, and no cure had yet been found. He tried to get a grip. He had an important message for his family. In a moment of effortful decision, he picked up his phone, pressed the WhatsApp app, and began to talk.

“I want to be buried in Israel.” He pressed the “Send” button and gave the matter some thought. Again, he pressed on the app and spoke: “I want all my assets in Israel, including my two apartments, to be given solely to my sister Hannah.” SEND.

He reflected some more. Then he pressed the app and talked again into the phone, giving instructions that all the other assets that he had in California and elsewhere should be given to a number of different people and charities. Again, he pressed SEND.

A few months later, a mighty legal row exploded as a result of these verbal instructions by the now deceased patient. The sister, Hannah, had brought these various WhatsApp messages to the Family Law Court in Tel Aviv and asked for these to be recognized as a valid will and for the apartments and the other assets in Israel to be transferred to her name in accordance with the instructions given.

Israelis waiting on line for COVID tests at Habima Square in Tel Aviv, January 9, 2021. (credit: AVSHALOM SASSONI/MAARIV)

Hannah had already honored the patient’s requests and made sure that he was buried in Israel. Now she needed the court’s official recognition that the rest of his wishes would be fulfilled. Without the court’s recognition that these instructions were a valid will, the late brother’s words would be ignored. The legal process by which the court affirms the validity of any will is called probate. “Probate” is the judicial process whereby a will is “proved” in a court of law and accepted as a valid public document that is the true last testament of the deceased.

But Hannah had a problem. There was no precedent in Israel for a WhatsApp message to be recognized as a valid will. But, she told the court, we live in the Digital Age. Almost everything is done online – from your tax returns to petitions to court of law. Hardly anything is done on paper anymore. In the UK and the US, there is even talk of doing completely electronic wills – without any papers being required at all and signatures executed electronically.In Israel, we pride ourselves on being at the cutting-edge of technological change. Would the court accept these messages as a “last will and testament” of Hannah’s brother?

Corona was devastating. But to use the words of John Milton, there was a silver lining. Things change, and crises often create unexpected benefits. Remember the widespread isolation that was initially imposed by authorities throughout the world?

Remember the empty streets of London and the dolphins suddenly swimming up Venice’s canals in the absence of people? This is etched in people’s memories. But what most people outside the legal profession are not aware of was how the epidemic also created some serious legal problems.

For example, how do you sign a document which needs a witness or an attestation by a notary or a lawyer if you are unable to come out of isolation? How can you testify in court if you are not able to leave the house? How can you sign the papers required to buy a house?

The mills of justice are said to grind slowly. But the Israeli legal system actually adjusted quite rapidly. Zoom meetings between lawyers and clients became commonplace. Even the courts allowed witnesses to testify through Zoom – virtually unheard of prior to the crisis. Signatures which previously required personal attendance could now be verified by the now familiar term in Hebrew hitva’adut hazutit – visual conference. In fact, we’ve all gotten so used to these changes that we have forgotten how rare it was to use such facilities, even though they were available before the corona epidemic. Things change. We have all benefited by the adoption of much more efficient ways of doing things.

So now, in the spirit of the times, what can be wrong with a WhatsApp message expressing the last wishes of Hannah’s brother?

A very similar case was heard in the Tel Aviv Family Court and led last month to a comprehensive judgment by Judge Lauren Akoka. The judge gave a decision which emanated from a dispute resulting directly from the previous pandemic. The facts were very similar to those in Hannah’s case.

In this case the deceased, an older man, contracted corona right at the outset of the epidemic when isolation rules were very strict. According to his sister, who lived in Israel, the person in question decided to make a will and did it by sending messages through WhatsApp to his sister, indicating what he wanted to happen after his passing. He emphasized that he wanted to give her his Israeli assets. At the same time, he instructed her to ensure that he would be buried in Israel. He wrote these messages shortly before he was overcome by the illness and passed away in hospital abroad.

His sister then presented the WhatsApp messages to the Family Law Court in Tel Aviv, arguing that these clearly expressed his desire as to how he wanted to dispose of his Israeli assets after his death. The court, urged the sister’s lawyers, should follow our ancient guiding principle which had existed in Jewish law ever since it was enunciated by Rabbi Judah HaNasi: “It is incumbent upon us to ensure that the wishes of a deceased are honored” (Mitzva lekayem livrei ha’met). This 2,000-year-old guiding principle has been a thread from those ancient times right down to its acceptance in modern-day Israeli legal practice.

The judge naturally subscribed to this time-honored principle. But not so fast, said the judge. Creating legal precedents, whether by legislation or by the judiciary, can lead to totally unintended consequences. There can be no rush to judgment. To judge where the truth lies about a question or to pass judgment about who are morally right and wrong in some event requires careful thinking.

The judge could have summarily dismissed the application for probate. But, recognizing that this was an unprecedented request, she decided to analyze in some depth whether the availability of messages such as WhatsApp presented new technological opportunities. Or alternatively, whether such communications did not fulfill the requirements demanded by the law.

Right at the outset, Judge Akoka pointed out that these messages presented a substantial problem. Were they really a will? Or were they just disjointed messages?

Also, as the judge pointed out, there is no provision in Israel inheritance law which enables a message typed on a phone to be recognized as a valid will. In fact, expert legal opinion was provided stating that such a will would not be recognized in California – the deceased’s place of residence. More tellingly, the sister could provide no proof that there was any jurisdiction in the world that would accept such method of executing a will. Importantly, the deceased had two sons. Thus, if the WhatsApp will was not recognized by the court as valid, the two sons would inherit under the rules of the Israel Inheritance Act, which apply when there is no will. The sister’s lawyer urged the court to “think out of the box.”

Of course, this was unprecedented, the lawyer admitted, but surely, technological innovations should be accepted as enablers, not as stumbling blocks. Furthermore, he argued that it was clear that this was the last will of the deceased, who had a very difficult, not to say acrimonious, relationship with his two sons. On top of that, if one takes into consideration that the deceased was unable to communicate as a result of his being hospitalized in deep isolation, what else could he do in order to express his last wishes with regard to his assets?

After hearing the evidence, the judge essentially dismissed these arguments as being not to the point. Whether his relationship with his children was a good one or not is hardly relevant to the Inheritance Act. There is no need to prove that there was a close familial or even harmonious relationship between people who inherit. Secondly, the deceased may have been in isolation, but he was still in touch with his nurses and doctors, and there was nothing holding him back during his stay in the hospital from asking for a sheet of paper and to write his will by hand. A handwritten will is valid under the law.

The court thus pointed out that there are only four ways to make a will in Israel:

Handwritten by the testator, with no witnesses necessary
Handwritten or typed, signed before two witnesses
Before an authority (such as a judge or a notary)
Under exceptional circumstances, the testator can express his/her wishes orally concerning what will be done with his/her property after his/her death.

A WILL is a very significant document, and even if the judge believed that this was the intent of the deceased, these messages would not be enough to supersede the lack of the essential legal ingredients that make up a will. There was no way to remedy these faults in the purported WhatsApp will. “True,” the court ruled. According to Section 25 of the Inheritance Act, the court has discretion to amend faults in certain cases, but this was only if the essential legal ingredients were present.

These essential legal ingredients include specifying the date of signing; declaring that this is your last will and testament; signing in front of witnesses, depending on the type of will; and in some cases, an oral will, which includes a subjective belief by the testator that he/she is at death’s door.

The judge pointed out that in these WhatsApp messages, the critical mainstays of legally valid wills were totally absent; therefore, it was impossible for the court to remedy these faults. The WhatsApp will was not recognized as valid, and the two sons inherited.

Whatever your legal opinion on the matter, in the era of digitization, AI, and deep fakes, one thing is certain: Very soon, the legislator will have to revisit these issues which have become our daily experience. ■

Haim Katz and Sam Katz are senior partners in a law firm based in Tel Aviv and Jerusalem. Their new book in English, The Complete Guide to Wills and Inheritance in Israel, is published by Israel Law Publications. Specializing in inheritance disputes and family law, they both serve on the Israel Bar Association National Committee for Inheritance Law, which advises the government on law reform relating to inheritance and probate. office@drkatzlaw.com