מצווה לקיים דברי המת: Bava Batra 149b

One Shabbat afternoon, Mr. Cohen, who was perfectly healthy and sipping tea at the time, turned to his son Jack and said, “You know that I love your sister, Jill, as much as I love you. So when I die, I would like her to have half of my estate together with you.”

Later, after the death of Mr. Cohen, Jack refuses to share the estate with Jill. He argues that according to Jewish law the son inherits the entire estate and the sister is not entitled to a share.

“The only way Dad could have changed the situation,” argues Jack, “is either by means of a שטר צוואת בריא – shtar tzava’at barie, a will by way of gift of a healthy person, or by means of a צוואת שכיב מרע – a tzeva’at shechiv mei’ra, a dying declaration.

“But Dad did neither. He did not do the former because his wish was not put down in writing. Neither was it accompanied by a ma’aseh kinyan, an act of transfer. Dad did not do the latter because he was not dying when he expressed his wish that Jill share in the estate. He was perfectly healthy when he said it. So either way, Jill is out of luck.”

So Jill goes to her rabbi. The rabbi calls Jack. “Look Jack, you admit that your father expressed his wish that Jill share the estate with you. You have an obligation to carry out the express wish of the deceased, מצווה לקיים דברי המת – mitzvah le’kayem divrei ha’met.” So be a good Jew and share the estate with Jill.”

But Jack refuses. Mitzvah Lekayem Divrei Ha’met or not, he is the legal owner of the estate according to Torah law. In the absence of one of the effective ways for changing the Torah’s order of succession, Torah law is on Jack’s side. He is adamant. In fact, in order to preempt any further pressure on him, Jack sells all the assets in the estate to a third party, pockets the money and spends it.

When does the obligation of “mitzvah lekayem divrei ha’met” apply and how can it improve Jill’s position?

According to the accepted Halacha, the obligation of mitzvah lekayem divrei ha’met applies only if the deceased, during his lifetime, actually deposited the assets that he wishes to give to the beneficiary with a third party, such as a designated administrator of his will, with instructions to give those assets to the beneficiary after his death.

But none of this improves Jill’s situation in the circumstances of this case. It is generally accepted that, unlike a shtar tzava’at barie or a tzeva’at shechiv mei’ra, which have the power to transfer the ownership in the estate to the beneficiary of the gift, even if such beneficiary is not a recognized heir under Torah law, the obligation of mitzvah lekayem divrei ha’met does not transfer ownership, even when the assets are deposited with an administrator with instructions to deliver them to the designated beneficiary.

Notwithstanding the obligation of mitzvah lekayem divrei ha’met, unless the deceased made the gift by way of a shtar tzava’at barie or a tzeva’at shechiv mei’ra, Jack remains the legal owner of the property because he is the Torah heir. It is true that by virtue of mitzvah lekayem divrei ha’met, Jack, who remains the legal heir under Torah law, has an obligation, a mitzvah, to share the estate with Jill. Indeed, as long as the estate is still in the hands of Jack, a Jewish court of law can enforce this obligation and compel him to do so. Furthermore, if Jill seizes her share of the estate from Jack, the dictum, mitzvah lekayem divrei ha’met permits Jill to keep them.

But Jill’s right, arising out of mitzvah lekayem divrei ha’met does not transform Jill into an heir. Jack is still the heir, albeit with an obligation to transfer part of the estate to Jill. But, if Jack, the Torah heir, ignores his religious obligation of mitzvah lekayem divrei ha’met, and sells all the assets of the estate, the sale is effective and Jill has no claim against Jack.

Some halachic authorities have more aggressively applied the obligation of mitzvah lekayem divrei ha’met in favor of the non-Torah heir beneficiary, even when the assets were not deposited with an administrator. These halachic authorities have argued that since the law of the land gives daughters a share in the estate it is tantamount to depositing the assets with an administrator.

While still recognizing sons as the legitimate Torah heirs, these halachic authorities have ruled that, based on mitzvah lekayem divrei ha’met, daughters, in such situations, must receive their shares of the legacies.

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].