Bava Batra 126b and 133b

A will made in accordance with the law of the land, in which the testator bequeaths his estate after his death to persons who are not recognized as heirs under Jewish law, such as a daughter in the presence of sons or a spouse where there are surviving children is, as we have seen, ineffective under Jewish law.

There are two reasons for this.

First, such a will would contradict the order of inheritance mandated by the Torah, which provides that neither a daughter nor a wife shares in the estate in the presence of sons or children respectively.

Second, it purports to give away the property of the deceased after his death. In Jewish law, a person cannot give away his property after his death because, at that point, he has no power of disposition over it. The laws of Jewish inheritance take over and decide for him, how and to whom his estate shall be distributed.

It is generally accepted by Halachic authorities that a person who wishes his property to go, after his death, to persons who are not recognized as heirs under Jewish law, can only achieve this by means of a written testamentary gift made during his lifetime. This gift must be reinforced by an act of transfer, a מעשה קנין – ma’aseh kinyan such as a קנין סודר – kinyan sudar, a legal form of symbolic acquisition which lends physical expression to the mental decision to transfer property. Simply using the usual testamentary language, “I give and bequeath my property after my death to Joe,” does not work in Jewish law, even though it may be effective under the law of the land.

Why does the Halacha not recognize the validity of wills made in accordance with the law of the land?

There is a concept in the Talmud known as  דינא דמלכותא דינא – dina de’malchuta dina which, when applicable, provides that the laws of the land are incorporated into and are part of the laws of Halacha. These laws, once incorporated, must be obeyed, not only because they are the laws of the land but also because they become Jewish religious law. A prime example of the application of dina de’malchuta dina is in the area of taxation and currency regulation.

Less clear, however, is whether the concept of dina de’malchuta applies to the area of civil law such as the law of transfer of property. If the law of the land would apply, it would render the Jewish code of business law, now encoded in the Shulchan Aruch, Choshen Mishpat, redundant.

According to the Rambam, the law of the land is only imported into Jewish law in fiscal matters such as taxes and currency regulation, in which the government has a special fiscal interest. Dina de’malchuta does not apply, according to the Rambam, to transactions among citizens. Other Rishonim, such as the Ramban, maintain that dina de’malchuta does indeed apply to civil law in situations where the government insists that transactions are only valid if entered into in a legally prescribed way.

Although there is a difference of opinion about the application of dina de’malchuta in connection with civil law, there is almost unanimous agreement that dina de’malchuta does not apply to the Jewish law of inheritance. Thus, the Remah, who is of the view that dina de’malchuta applies generally to civil law, would agree that it does not apply to the Jewish laws of inheritance.

All of this brings us back to the conclusion that the only valid way to distribute one’s estate to persons who are not heirs under Jewish law is by means of a שטר צוואת בריא – a written will by way of gift of a healthy person, which, as we have seen, requires an overt act of transfer, a ma’aseh kinyan. A will made under the law of the land without a ma’aseh kinyan, which disinherits those that are legal heirs under Jewish law after the death of the testator, is invalid under Jewish law.

There is, however, a notable dissenter from this opinion. Rabbi Moshe Feinstein writes that a testament made by a Jewish person according to the law of the land, while in good health, is valid in Jewish law, even though it was made without a ma’aseh kinyan.

“Although, there is no such thing as a kinyan after death, and such a gift is not valid in Jewish law,” writes Rabbi Feinstein, “nevertheless, according to the law of the land a person can legally transfer, with effect after death, money or any other object. A testament of this kind, which will certainly be put into effect by the laws of the land, does not need a kinyan as one could not imagine a more effective kinyan than this. Hence, since a kinyan is not necessary, the legatees can uphold their right against those persons who are the proper heirs under Torah law, although there is no such thing in Jewish law as a gift after the death of the donor.” ועצם הצוואה כיון שנמסרה לדינא דמלכותא שודאי יעשו כדבריה אף שהיא מתנה לאחר מיתה שכבר אינו שלה שמסתבר שלא יועיל בכגון זה הא דינא דמלכותא דינא שתוכל ליתן דבר שאינו שלה. אך בעצם מסתבר לע”ד שצוואה כזו שוודאי יתקיים כדברי המצווה בדינא דמלכותא אין צריך קנין שאין לך קנין גדול מזה.

Raphael Grunfeld, a partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, received Semichah in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Harav Haga’on Dovid Feinstein, Zt”l. This article is an extract from Raphael’s book “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerai’m” available for purchase at www.amazon.com/dp/057816731X or by e-mailing Raphael at [email protected].