Bava Batra 133b

If a person wishes to bequeath his property to a person not recognized as an heir under the Jewish law of succession or wishes to alter the Torah’s order of hereditary succession, he must do so by way of a gift. In order to be effective, the gift must be made during the lifetime of the donor. In this way a person could, if he wished, disinherit his entire family. Although the Rabbis frown upon such a disposition of one’s property to non-Torah heirs, it is an effective disposition if it is done in the proper way.

Such “wills” must state that the donor is giving to the designated beneficiary certain designated property, the ownership of which is transferred to the beneficiary at the time the will is signed, but the use and possession of which can only be enjoyed by the beneficiary after the death of the donor. To effectively transfer property pursuant to such a testamentary gift, the transfer must be accompanied by a – מעשת קנין  – Ma’aseh Kinyan, an overt act of transfer.

In this way, the donor can continue to use his possessions during his lifetime, even though the ownership in them has already been conveyed to the beneficiary as a gift. A clause is usually written into the “will” reserving the right of the donor to revoke the gift during his lifetime, even up to one hour before his death.

What follows is a basic example of such a “will.” It is for illustrative purposes only and should not be used in practice without consulting your posek. It contains some explanatory notes in square brackets.This form does not include property not yet owned by the testator at the time of the making of the will. Any will of this kind must be reviewed beforehand by a competent Halachic authority in this area and preferably also by a trusts and estates attorney.

Form of Will

“I, the undersigned, [insert name, address and other identifying details] am making this, my last will, with a sound mind and out of my own free will. I wish that part of my property should be given after my death to the persons and institutions listed below.

I hereby acknowledge and declare that, I, a healthy person, have publicly transferred, effective as of today, to the people and institutions listed below, by way of a gift, the ownership in the property listed below. Each person, to whom the gift is being transferred, shall acquire it in the most legally effective way in accordance with the laws of the Torah and the Rabbis. I reserve the right to retract this gift at any time prior to one hour before my death.

Although I have transferred the ownership in the property listed below to the beneficiaries listed below, I retain the right, during my lifetime, to the use of and to receive all benefit from such property. The right to the use and benefit of the property will be given to the beneficiaries listed below after my death.

In the event that any item of property is ineffectively transferred to any of the beneficiaries listed below, this shall not affect the legality of the transfer of the other items of property listed below. This Will should be effective under the laws of the Torah.

The following items of my property [describe the property] should be given to the following persons [insert names of beneficiaries].

All of my other property not mentioned in this Will, shall be distributed among my heirs in accordance with the laws of the Torah. [The testator leaves part of his or her estate to be distributed to heirs eligible to inherit under Torah law in order not to incur the displeasure of the Rabbis who frown upon those who distribute their estate to heirs not recognized by the Torah.]

All the terms and conditions of this Will are made in accordance with the laws of the Rabbis concerning effective terms and conditions including the double conditions of the sons of Gad and Reuven.

Any ambiguity in the meaning of this Will shall be resolved in favor of the beneficiaries of my property listed below and any dispute regarding this Will shall be resolved by the Halachic authorities who will prove this Will.

I revoke all wills that I have previously made. This, my last Will,shall remain in full force and effect, all in accordance with the laws of the Torah, as long as I do not revoke it or make another will which would totally or partially revoke this will.

This, my last Will, is made in the presence of two qualified witnesses whose signatures appear below, whom I have requested to act as my witnesses to the making of this Will. These witnesses have acquired this document, and the property mentioned in it, on behalf of all the beneficiaries listed above by way of “Kinyan Sudar” [a legal form of symbolic acquisition performed by the transfer of some article, such as a handkerchief] in the most effective way possible, as if performed in the presence of an esteemed court of law.

Raphael Grunfeld received semicha in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Rav Dovid Feinstein, ztz’’l. A partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, Raphael Grunfeld is the author of “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerayim” available for purchase at www.amazon.com/dp/057816731X and “Ner Eyal: A Guide to the Laws of Shabbat and Festivals in Seder Moed” available for purchase at www.amazon.com/dp/0615118992. Questions for the author can be sent to [email protected].