¹ 19 L.S.I. 58. It should be kept in mind, however, that the Succession Law does not cover the entire field of succession exhaustively. Questions concerning the most essential matters are not dealt with or resolved in the Succession Law. Questions as to the assets included in the estate and their scope, for example, are not settled exclusively by the Succession Law, but rather primarily by civil law in a broad context. Matters of succession and the laws relating thereto cannot be decided without examining the inter-relationship between the Succession Law, on the one hand, and civil legislation or other laws, on the other. Thus, for example, the Trust Law, 1979 (33 L.S.I. 154) and the Spouses (Property Relations) Law, 1973 (27 L.S.I. 313) affect various matters of succession, such as transactions relating to succession, the scope of the assets of the estate, administration of the estate, and so forth.

² See Yadin, U., “The Law of Succession and Other Steps Towards a Civil Code” in Studies in Israel Legislative Problems, Scripta Hierosolymitana, vol. 16 (Jerusalem, 1966) 104Google Scholar; An updated version of the draft law appears in A Succession Bill for Israel (Harvard Law School Translation, 1952)Google Scholar; Sept. 1953 revisions (Harvard Law School Translation, 1954).

³ Sec. 156(a) of the Law repealed the provisions of the Mandatory Succession Ordinance (Laws of Palestine, vol. II, chap. 135, p. 1378Google Scholar) and sec. 4 of the Women's Equal Rights Law, 1951 (5 L.S.I. 171), as well as several provisions of the Mejelle which affected matters of succession. In sec. 156(b) the Law provided that successions, wills and legacies should be deleted from the list of matters of personal status in Article 51(1) of the Palestine Order-in-Council and that the term “confirmation of wills” be deleted from Article 54(1), which deals with the jurisdiction of the Christian Religious Courts. Henceforth, sec. 148 of the Law provides that “this Law alone shall apply to rights of succession and rights to maintenance out of the estate”.

⁴ This provision as to “the autonomy of the statute” was subsequently enacted in other codificatory statutes as well. See sec. 160 of the Land Law, 1969 (23 L.S.I. 283); sec. 24 of the Contracts (Remedies for Breach of Contract) Law, 1970 (25 L.S.I. 11); sec. 63 of the Contracts (General Part) Law, 1973 (27 L.S.I. 117); sec. 10 of the Contract For Services Law, 1974 (28 L.S.I. 115). Concurrently, in 1972 sec. 15(c) was added to the Law and Administration Ordinance, 1948 (1 L.S.I. 1), repealing every provision in any Mandatory Ordinance requiring a reference to English law for purposes of interpreting any provision or term therein: Law and Administration Ordinance (Amendment No. 14) Law, 1972 (26 L.S.I. 52). In 1980, Article 46 of the Palestine Order-in-Council was entirely repealed: see sec. 2 of the Foundations of Law, 1980 (34 L.S.I. 181). Despite the provision of sec. 150 of the Succession Law, the courts continued to refer to English law wherever an answer to a problem which arose could not be found in the Law. See Adler v. Nesher (1972) 26(ii) P.D. 745, at 748; Bin Nun v. Richter (1977) 31(i) P.D. 372, at 376; Shilo, I., “The Succession Law as Reflected in Court Decisions” (1975) 1 T.A.U. Studies in Law 46, at 48–50Google Scholar; Friedmann, D., “Independent Development of Israeli Law” (1975) 10 Is. L.R. 515, at 563–564Google Scholar; Friedmann, D., “Problems of Codification of Civil Law in Israel” (1979) 2 Jewish Law Annual 88, at 99–104Google Scholar; Sussmann, Y., “A Forecast of Problems in the Law of Contracts” (1976) 2 T.A.U. Studies in Law 17Google Scholar; Yadin, U., “Reflection on a New Law of Succession” (1966) 1 Is. L.R. 132, at 141Google Scholar.

⁵ See Tedeschi, G. & Zemach, Y.S., “Codification and Case Law in Israel” in The Role of Judicial Decisions and Doctrine in Civil Law and in Mixed Jurisdictions, Dainow, J., ed. (Baton Rouge, Louisiana State U.P., 1974) 272, at 273Google Scholar. And see generally, David, R. & Brierley, J.E.L., Major Legal Systems in the World Today (London, 1985) 221Google Scholar; Sawer, G., “The Western Conception of Law” in International Encyclopaedia of Comparative Law, vol. II: The Legal Systems of the World: Their Comparison and Unification (The Hague and Tübingen, 1975) 14, at 47Google Scholar.

⁶ From the explanatory note to the draft Law of 1952: see Yadin, supra n. 2, at 112; Friedmann, supra n. 4, at 543–544.

⁷ See explanatory note on the draft Law of 1952, and see Yadin, supra n. 2, at 111–112.

⁸ See Yadin, U., “The Succession Law as Part of Israeli Civil Law Legislation” (1975) 1 T.A.U. Studies in Law 36, at 41Google Scholar. See generally, Tedeschi & Zemach, supra n. 5, at 278–280 and sources referred to therein.

⁹ A good example of this is the topic of maintenance out of the estate, specified in Chapter Four of the Law. The legislator chose to safeguard the livelihood of the dependants of the deceased by granting them a right to maintenance out of the estate, and at the same time he rejected the alternative of reserved shares in the estate. In adopting the first alternative, the draftsmen of the bill were prompted, inter alia, by the desire to preserve an institution which has become an integral part of the Jewish law of succession. In doing so, however, the draftsmen were guided no less by the institution of maintenance out of the estate which has been adopted during the present century by the legal systems of New Zealand, Australia, Canada and England. Yet the scope of this institution in our Succession Law, as well as its conditions and details, differ significantly from both the corresponding provisions of Jewish Law and the example drawn from the Anglo-Saxon world. See Yadin, supra n. 6, at 137–138.

¹⁰ See Rheinstein, M. & Glendon, M.A., “Interspousal Relations” in International Encyclopaedia of Comparative Law, vol. IV: Persons and Family, Ch. 4 (Tübingen, 1980) 180Google Scholar. Cf. Num. 36:7: “So shall no inheritance of the children of Israel remove from tribe to tribe; for the children of Israel shall cleave everyone to the inheritance of the tribe of his fathers”; and see Weingreen, J., “The Case of the Daughters of Zelophechad” (1966) 16 Vetus Testamentum 518CrossRefGoogle Scholar.

For this reason the Code Napoleon of 1804 granted the surviving spouse one-half of the couple's movables, but – in the absence of a will – he did not share in the succession to the immovable property of his deceased spouse unless the latter left no blood relations up to the 12th parentela (art. 767). Even when the law was amended in 1957 and the spouse included among the heirs on intestacy, he was deferred by the descendants of the deceased, by his brothers and sisters and by their descendants. (I Code Civil, art. 766, as amended by Loi No. 72–3 Sur la Filiation 3 Jan. 1972). Similarly, there prevailed in the German succession laws of the period of the Second World War the institution of the Erbhofegesetz, whereby the inheritance was bequeathed to the blood relatives of the deceased, ignoring his widow. And see Muller-Freienfels, W., “Family Law and the Law of Succession in Germany” (1967) 16 Int'l & Comp. L.Q. 409, at 413Google Scholar.

¹¹ Under Jewish law, this was effected by safeguarding the right of the widow to restoration of her assets and to her ketubah or, alternatively to her maintenance and to her right of residence. See Code of Maimonides, The Book of Women, Laws Concerning Marriage 12: 1Google Scholar; Shulhan Arukh, Even Ha'Ezer 69: 1–2Google Scholar. Generally see Shereshewsky, B.Z., “Widow” in The Principles of Jewish Law, Elon, M., ed. (Jerusalem, 1975) 399–403Google Scholar. Cf. the right of the widow, under common law, to dower, which constituted a life interest in one-third of which her deceased husband had been seized, in fee or in tail, during the marriage. As to the institution of dower see Haskins, , “The Development of Common Law Dower” (1948) 62 Harv. L.R. 42CrossRefGoogle Scholar.

A parallel institution existed also in other legal systems. For German law see Huebner, R., A History of Germanic Private Law (Boston, 1918) 624–626Google Scholar. In American law the institution of “homestead” is recognized in most of the states of the United States. It protects the right of the surviving spouse to reside in the house where he or she lived with the deceased. Such protection is afforded both as against the creditors of the deceased and as against those who inherit by will. Similar to the right of residence of the widow under Jewish law, it comes to an end upon the remarriage or death of the spouse; Rheinstein & Glendon, supra n. 10, at 142.

¹² See König, R., “Sociological Introduction”, in International Encyclopaedia of Comparative Law. vol. V: Persons and Family. Ch. 1 (Tübingen, 1972) 36–37, 43–44Google Scholar. See also Tedeschi, G., “Comments on The Succession Bill” in Studies in Israel Private Law (Jerusalem, 1966) 234, at 242Google Scholar; Rheinstein & Glendon, supra n. 10, at 179–181.

¹³ This is the position in German Law, for example, which recognizes five parentelas but restricts inheritance by relatives of the deceased together with the spouse to the second parentela and to the heads of the third parentela only. Beyond that, the spouse inherits the whole estate (BGB sec. 1391). See Cohn, E.J., Manual of German Law, vol. 1 (London, 1968) 261Google Scholar. Thus, under the United States Uniform Probate Code, sec. 2–102, the spouse inherits everything following the first parentela and the heads of the second parentela only. The text has been approved by the National Conference of Commissioners on Uniform Laws and by the American Bar Association. The Code has been adopted in 14 states during the period August 1969 to February 1987. See Uniform Probale Code (U.L.A.) 1987 Commulative Annual Pocket Part vol. 8 (St. Paul, Minn., 1987)Google Scholar. English law restricts inheritance by the relatives of the deceased together with the spouse to those of the second parentela. Where only relatives of the third parentela remain, even if they are the heads of that parentela, the spouse will be entitled to the whole of the estate (Administration of Estates Act, 1925, as amended by the Intestates' Estates Act, 1952). Other systems go even further in protecting the spouse. Thus, for example, in New South Wales only relatives of the first parentela participate in the allocation of the estate in competition with the spouse. Beyond them, the spouse inherits alone (Wills, Probation and Administration Act, 1898; and see infra, n. 22).

¹⁴ Writers regard this phenomenon as a recognition of the wife's contribution to the family wealth. See Miller, J.G., The Machinery of Succession (Abingdon, 1977) 96Google Scholar. A different explanation is put forward by Muller-Freienfels, supra n. 10, at 430, according to whom this reflects social developments in the modern age. Preference for the spouse is a consequence of the fact that, on the one hand, parents nowadays spend large sums of money during their lifetime on the education of their children; on the other hand, the change in the law reflects the difficulty of accumulating capital during married life, whereas the children already enjoy a considerable income at an early age.

¹⁵ The Succession (Amendment No. 3) Law, 1976 (30 L.S.I. 102) repealed the last part of sec. 12 of the Succession Law, which had granted the parents of the deceased one-sixth of the estate where the deceased left children and parents. See explanatory note to the Succession (Amendment No. 4) Bill, 1975, H.H. 434.

¹⁶ (1958) H.H. 212Google Scholar; sec. 14 of the Bill.

¹⁷ Succession (Amendment No. 4) Law, 1976, (30 L.S.I. 152).

¹⁸ Succession (Amendment No. 3) Bill, 1974, H.H. 248Google Scholar.

¹⁹ Succession (Amendment No. 7), Law, 1985 (S.H. no. 1140, p. 80).

²⁰ See sec. 11 (a) as amended. Indeed, in one matter the legislator did not remain faithful to this approach. Wherever there arose some apprehension as to a contradiction between various alternatives in sec. 11(a) of the Law as a result of the prima facie existence of heirs belonging to the various categories, the legislator chose to prevent such a contradiction. At times the contradiction was avoided by increasing the share of the spouse at the expense of the other heirs, as was done with regard to children of a previous marriage; but at times the contradiction was also avoided by increasing the share of the other heirs at the expense of the spouse, as was done by allowing for representation of deceased parents and grandparents, and even more so, by restoring to the circle of heirs, together with the spouse, those heirs who had been excluded therefrom under Amendment No. 4 of the Law. On this, see Rosen-Zvi, A. and Maoz, A., “Intestate Succession” (1986) 11 Iyunei Mishpat 457, at 464–465Google Scholar. And see infra, chap. VIII.

²¹ Muller-Freienfels, supra n. 10, at 409, regards the separation in Germany of the law of succession from family law as “one of the great achievements of the enlightenment and the natural law school”.

²² Various legal systems combine these methods, either by way of alternatives or cumulatively. An example can be found in New South Wales. Sec. 61 B(3) of the Wills, Probate and Administration Act 1898, which was added to the statute in 1974, grants the spouse competing with the deceased's descendants A$ 100,000 out of the assets of the estate, as well as the household chattels specified in the Act. The spouse takes one-half of the remainder of the estate, while the remaining half is divided among the descendants. In 1977, sec. 61D was added, granting the spouse the right to take the “matrimonial home”, within the scope of his share in the estate, even if its value exceeds the share in the inheritance to which the spouse is entitled under the provision of sec. 61B(3). See also sec. 61B(13). Independently of this statute, the Family Provision Act 1982 (sec. 7) confers on the court the power to make adequate provision “for the maintenance, education or advancement in life” of certain relatives, including a spouse, where such needs are not provided for under the provisions of the will or the law regulating intestacy. It should be mentioned that in 1981, when the reserved share of the spouse in the estate was raised from A$50,000 to A$ 100,000, 86.9% of all estates in New South Wales were valued for tax purposes at less than A$50,000. 1981 New South Wales Yearbook 590.

²³ On these methods under American law, see Rheinstein, M. & Glendon, M.A., The Law of Decedents' Estates (Mineola, 1971) 87–104Google Scholar. On European and English law see Rheinstein, M., “The Law of Family and Succession” in Civil Law in the Modern World, Yeannopoulos, A.N., ed. (Louisiana, 1965) 27, at 53–56Google Scholar. Generally, see Oughton, R.D., Tyler's Family Provision (Abingdon, 1984) 1–30Google Scholar.

²⁴ On the relationship between testamentary freedom and the safeguarding of the family, see, inter alia, Miller, supra n. 14 at 4–6, 16 et seq. Unger, J., “The Inheritance Act and the Family” (1942) 6 Mod. L.R. 215CrossRefGoogle Scholar. On the ideology in favour of the reserved share, see Fratcher, W.F., “Toward Uniform Succession Legislation” (1966) 41 N.Y.U.L.R. 1037, at 1050–1064Google Scholar; Rheinstein & Glendon, supra n. 10, at 140. On priority of the testator's wishes and testamentary freedom, see Plager, , “The Spouse's Nonbarrable Share: A Solution in Search of a Problem” (1966) 33 Chi. L.R. 681CrossRefGoogle Scholar. And generally, see Oughton-Tyler, supra n. 23, at 31–36.

²⁵ On method of reservation of shares, as compared with maintenance out of the estate, see Miller, supra n. 14, at 18–19. He criticizes the method of a fixed reserved share, arguing that it lacks flexibility, failing to distinguish between rich and poor, strong and weak or young and old, whereas maintenance out of the estate involves discretion, taking into account the circumstances of each case. Maintenance out of the estate relates to the needs of the surviving heir, whereas the reserved share is concerned with how the property of the estate is to be divided. On this method of the reserved share together with maintenance out of the estate, see Tedeschi, supra n. 12, at 231–236. Prof. Tedeschi favours of providing for a reserved share even if maintenance out of the estate is also provided for, together therewith, since in his view the latter institution does not meet the interests protected by the provision of a reserved share. See also Shilo, supra n. 6, at 54–55. As to the hesitations which accompanied the enactment of the Succession Law in this context of the reserved share, see the Succession Bill, 1952, pp. 59–63, 99–104.

²⁶ In Germany, secs. 2303–2305 of the BGB provide that heirs entitled to a reserved share (the descendants, parents and spouse of the deceased) have a claim against the heirs. This is not a direct grant out of the estate, but, as it were, an in personam action for a debt against the heirs. The reserved share is one-half of the share provided in the Code as the intestate share of that relative or spouse. This is the institution known as Pflichtteil; and see Muller-Freienfels, supra n. 10, at 419–420. In France, on the other hand, the reserved share consists of participation in the inheritance itself and in the distribution of the estate. However, in France this right is afforded to the deceased's descendants and ancestors, but not to his spouse. See Miller, supra n. 14, at 6, 10; Rheinstein & Glendon, supra n. 10, at 89, 180.

²⁷ Miller, supra n. 14 at 18–41. South Africa has also abolished the reserved share. South African law used to recognize the reserved share of children and other relatives, within the framework of its Roman-Dutch legal heritage. See Oosthuizen, A. J., The Law of Succession (Capetown, 1982) 81Google Scholar. It should be mentioned that in South Africa the spouse is granted a choice between a proportional share of the inheritance of the deceased (which changes according to the degree of relationship of the heirs who inherit together with the spouse) and a lump sum fixed by statute. The spouse is entitled to receive the higher of the amounts yielded by these two alternatives.

²⁸ Sec. 2–201.

²⁹ See Uniform Probate Code (U.L.A.) vol. 8 at 73Google Scholar.

³⁰ It is interesting that studies have proven that the existence of a community of property regime does not affect the extent to which property is left to the spouse by will in the United States. See Price, J.R., “The Transmission of Wealth at the Death in a Community Property Jurisdiction” (1975) 50 Wash. L.R. 277, at 283–284Google Scholar.

³¹ See infra, chap. III(F).

³² Thus in England the spouse, under intestate succession, takes a certain sum of money in addition to his share in the estate, which constitutes a statutory legacy. And see the Administration of Estates Act 1925 as amended by the Intestates' Estates Act 1952 and subsequently by the Family Provision Act 1966. The latter enactment granted the power to increase the said sum by order, as was indeed done in 1972, 1977 and 1981. In this context see Family Provision (Intestate Succession) Orders 1972. And see Clarck, J.B., Parry & Clarck on the Law of Succession (London, 8th ed., 1983) 83Google Scholar.

³³ On the view that resources balancing between spouses on the death of one of them introduces through the back door the principle of a reserved share, and is intended to fulfil the function of a reserved share in the estate, see Shifman, P., “Property Relations between Spouses” (1976) 11 Is. L.R. 98, at 104Google Scholar.

³⁴ At the session of the Constitution, Law and Justice Committee held on 12 June 1984, Prof. Shifman put forward a proposal that all assets common to both spouses, whether by virtue of the ordinary laws of property or under the presumption as to community of property, as well as all assets subject to balancing under the Spouses (Property Relations) Law, 1973 should on the death of one spouse be vested in the surviving spouse. This proposal, as well as that of determining a fixed and uniform share for the spouse, whether or not safeguarded wholly or in part against the provisions of a will, were not accepted by the Committee.

³⁵ See Tedeschi, supra n. 12, at 231, and see sec. 2303 of the BGB, supra n. 26; Shilo, supra n. 4, at 54.

³⁶ The justification for the law's intervention in such a case was explained by the Law Reform Commission of New South Wales, as “to remedy a breach by a person of his moral duty as a wise and just husband or father to make proper provision, having regard to his property, for the maintenance, education and advancement of his family”. Working Paper on Testator's Family Maintenance and Guardianship of Infants Act, 1916 (1974) 22Google Scholar.

³⁷ This is the position under Jewish Law: Code of Maimonides, The Book of Judgments, Laws of Inheritance, 1: 8Google Scholar (“the wife does not inherit her husband at all”). As to maintenance out of the estate, see Karlin, A., The Law of Even Ha'ezer, Laws of Ketubot, (Jerusalem, 1950, in Hebrew) 133ff.Google Scholar; Shereshewsky, B. Z., Family Law (3rd ed., 1984, in Hebrew) 318ff.Google Scholar; Zolti, B., “Maintenance of a Widow” (1970) 12 Torah Shebe'al Peh 26Google Scholar; see also Sayag v. Azulai (197l) 25 (ii) P.D. 62, at 66: “The right … to receive maintenance out of the estate, which is granted to her by virtue of Jewish law precisely because she is not an heir”.

³⁸ Karlin, ibid., at 133 and 138; Shereshewsky, ibid., at 308–312. Until the Succession Law was enacted, the right of a Jewish widow to maintenance out of her husband's estate was classified in Israeli law as “a matter of marriage”: see Alpert v. Chief Execution Officer (1934) 1 P.L.R. 395; Miller v. Miller (1950) 5 P.D. 1301; Rosenbaum v. Rosenbaum (1949–50) 2 P.D. 235; Sidis v. Chief Execution Officer, Jerusalem (1954) 8 P.D. 1020, at 1023–1026. There are those who take the view that already when sec. 4 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953 (7 L.S.I. 139) was enacted, the topic of maintenance of the widow out of the estate dropped from the category of “matters of marriage”. See Goldman v. Goldman 3 S.J. 313, 318–319. Though the matter continued to be dealt with under religious law, similarly to the law of maintenance of a wife. See Shefi v. Shpitz (1955) 9 P.D. 1077; Levitsky v. Estate of Levitsky (1961) 15 P.D. 85, at 87; Khalifa v. Khalifa (1965) 19(ii) P.D. 338. Since the enactment of sec. 148 of the Succession Law, which provides that “… this Law alone shall apply to rights of succession and rights to maintenance out of the estate”, the territorial civil law applies to maintenance out of the estate. If the parties express their consent thereto in writing, then the Religious Court has jurisdiction under sec. 155 of the Law to deal with the matter according to the religious law applied therein, provided that the rights of a minor or legally disqualified person should not be less than what they would be entitled to under the Succession Law.

³⁹ Sec. 57(b) of the Succession Law; see Levi v. Estate of Levi (1970) 24(ii) P.D. 720.

⁴⁰ Sec. 59 of the Succession Law. See Doron v. Estate of Doron (1978) 32(iii) P.D. 5·33; Shahar v. Shahar (1982) 36(ii) P.D. 281. In the Shahar case the court held that sec. 59 of the Succession Law does not relate only to the amount of maintenance payable out of the estate, but also to the determination of the actual right thereto. In English law, the court was given discretion to grant maintenance out of the estate by the Inheritance (Family Provision) Act 1938. The powers of the court were extended by the Inheritance (Provisions for Family and Dependents) Act 1975. On the new statute, see Oughton & Taylor, supra n. 23, at 84 et seq.; Miller, supra n. 14, at 19 et seq.; Mellows, A.R., The Law of Succession (London, 4th ed., 1983) 183Google Scholaret seq. Compare Family Provision Act, 1982 (N.S.W.) and see Hardingham, I., Neave, M.A. & Ford, H.A.J., The Law of Wills (Sydney, 1977) 268–269Google Scholar.

⁴¹ Yadin, U., “The Proposed Law of Succession for Israel” (1953) 2 Am.J. Comp. L. 143, at 153–154CrossRefGoogle Scholar.

⁴² Sec. 65(a) of the Succession Law reads as follows: “An agreement relating to maintenance under this Chapter or a waiver thereof, if made in the lifetime of the deceased, is void and if made after his death, requires approval of the Court”: and sec. 65(b): “A testamentary provision which denies or limits the right to maintenance under this Chapter is void”. The size of the estate and the standard of living of the deceased and of the maintenance creditor are among the factors the court will take into account in determining the right to maintenance and the amount thereof, as specified in sec. 59 of the Succession Law.

An additional advantage of maintenance out of the estate ought to be mentioned, namely, that it takes precedence over distribution of the assets of the estate. It is only after the maintenance has been discharged that the remainder of the estate is to be distributed (sec. 107 of the Succession Law). Moreover, for purposes of payment of maintenance out of the estate the court may widen the scope of the assets of the estate and “may treat as part of the estate anything disposed of by the deceased without adequate consideration within two years prior to his death, excluding gifts and donations which are usual in the circumstances” (sec. 63 of the Succession Law). And see text infra at nn. 97–98.

⁴³ Supra n. 12, at 224.

⁴⁴ See Succession Bill, 1952, at 62.

⁴⁵ Shava, M., Personal Law in Israel (2nd ed., 1983, in Hebrew) 131–134Google Scholar.

⁴⁶ Sec. 11(c) of the Succession Law. As to statutory and case law adjustment where religious law is superimposed on the civil law, see Englard, I., Religious Law in the Israeli Legal System (Jerusalem, 1975) 201–208Google Scholar.

⁴⁷ This is an interesting point of similarity between Israeli law, concerning the rights of the Jewish wife after her husband's death, on the one hand, and South African law which provides the surviving spouse with a right to choose between two alternatives, on the other hand. See supra n. 27. German law, which recognizes the regime of community of surplus – “Zugewinngemeinschaft” (sec. 1363 of the BGB) – enables a spouse on termination of the marriage to claim one-half of the difference between his surplus and that of his spouse from the date of the marriage (secs. 1373–1378). Moreover, when the marriage comes to an end on the death of one of the spouses, the surviving spouse is given the alternative of receiving, in addition to his share of the inheritance, onequarter of the estate in place of the right of balancing, whichever he chooses (sec. 1371 et seq.); see Muller-Freienfels, supra n. 10, at 426–430; Cohn, supra n. 13, at 261.

⁴⁸ Sec. 6(b) of the Succession Law; see Tedeschi, , “Debts and Liabilities of a Deceased's Estate” (1976) 5 Iyunei Mishpal 14, at 15Google Scholar; on sec. 6(b) see Dekalo v. Munitz (1975) 29(i) P.D. 464; Munitz v. Dekalo (1976) 30(i) P.D. 242; Zik v. State of Israel (1978) 32(i) P.D. 662.

⁴⁹ Philosof v. “Taoz,” Provident Fund for Employees Lid. (1973) 27(ii) P.D. 535; Kipper v. Rabstein (1978) (2) P.D. 3.

⁵⁰ Sec. 104(a)(3) of the Succession Law; this is the case to the extent that the ketubah does not exceed a reasonable amount; see Rosen-Zvi, , Spouses' Property Relations (Jerusalem, 1982, in Hebrew) 325Google Scholar.

⁵¹ Sec. 4(a)(2) of the Estate Duty Law, 1949 (3 L.S.I. 95). The Estate Duty Law was repealed in respect of all persons who died after 31 March 1981 by the Estate Duty (Repeal) Law, 1981 (35 L.S.I. 178).

⁵² Although it is also possible to dissolve the community of assets created by virtue of presumption during the subsistence of the marriage subject to certain conditions; see Rosen-Zvi, supra n. 50 at 284–285.

⁵³ Sec. 5(a) of the Spouses (Property Relations) Law, 1973. And see Friedmann, D., “Matrimonial Property in Israel” (1977) 41 Rabels Z. 112, at 136Google Scholar. This is also the position under German Law: see sec. 1373 of the BGB and see supra n. 47.

⁵⁴ Cf. Muller-Freienfels, supra n. 10, at 423 et seq., especially at 426.

⁵⁵ I. Samuel 30:24.

⁵⁶ German law does not recognize a regime of community of assets proper. The spouses do not have a proprietary right in rem in the assets themselves. The Zugewinngemeinschaft regime partakes of the nature of a mere monetary claim in respect of the difference created by increase in value of the separate property of the spouse: Muller-Freienfels, supra n. 10, at 427.

⁵⁷ Indeed, as we have already seen supra, in text at n. 28. the Uniform Probate Code provides that when the proprietary regime of community of assets applies to the spouses, there is no place for protection of the surviving spouse by means of a reserved share. On the other hand, under a legal system that adopts the regime of separate property, it is proposed to protect the interest of the surviving spouse by means of a reserved share of the inheritance. Under German Law the claim for Zugewinngemeinschaft is additional to the reserved share of the surviving spouse in the estate; see supra nn. 26 and 27.

⁵⁸ Sec. 8 of the Spouses (Property Relations) Law, 1973.

⁵⁹ English law, which favours judicial discretion with regard to marital property relations draws a close analogy between maintenance out of the estate and distribution of assets on termination of marriage on the death of a spouse. This follows from the affinity of the institution of maintenance out of the estate after divorce with distribution of assets on termination of marriage following divorce. See Gray, K. J., Reallocation of Property on Divorce (Abingdon, 1977) 342et seq.Google Scholar See also The Law Commission (England) (No. 103) Family Law, The Financial Consequences of Divorce: The Basic Policy (A Discussion Paper) (1980) 31–34Google Scholar.

Since this system leaves the court wide discretion to determine the mode of distribution of the couple's assets or the payments to be made at the time of dissolution of the marital tie in the event of divorce (see Matrimonial Causes Act, 1973, secs. 24, 25), serious injustice is brought about in cases where the marriage tie is dissolved on death of one of the spouses. As early as 1973, the Law Commission (No. 52), Family Law, First Report on Family Property: A New Approach (1973) 31–33, 44Google Scholar, recommended that this incongruity be removed by allowing the court a similar degree of discretion in the event of the death of a spouse as on divorce. A special opinion devoted entirely to this matter was given in mid-1974: The Law Commission (No. 61), Family Law, Second Report on Family Property: Family Provision on Death (1974). On the basis thereof the Inheritance (Provision for Family and Dependents) Act, 1975 was enacted, replacing the Inheritance (Family Provision) Act, 1938. The new statute widened the powers of the court to grant maintenance out of the estate and the scope of the considerations that it may take into account.

Similarly, the statute conferred on the court for the first time additional powers of transferring property from the estate to the surviving spouse or of granting a one-time payment to the spouse (sec. 2 of the Act), whereas the following considerations were added to the already varied list: contribution to the family well-being and to the household, duration of the marriage, behaviour during marriage, etc. These considerations are almost exactly identical with those that the court may take into account in an action for divorce. See Miller, supra n. 14, at 19 et seq.

Report No. 52 of 1973 recommends that if its conclusions be adopted and provisions for the family and the spouse are increased and put on a wide basis, there will be no need nor will it be desirable to provide a reserved share of the inheritance for the spouse. The report deals at length with the connection between the various methods: maintenance out of the estate, community of assets and a reserved share of the inheritance, and any combination thereof. See p. 35 et seq. of the Report.

⁶⁰ See Berger v. Director of Estate Duty (1965) 19(ii) P.D. 240; Bareli v. Director of Estate Duty (1969) 23(i) P.D. 393; see also Levi v. Goldenberg (1970) 24(i) P.D. 813; Rosen-Zvi, supra n. 50, at 262 et seq.

⁶¹ Rosen-Zvi, ibid., at 275 et seq.

⁶² Sec. 104(a)(4) of the Succession Law.

⁶³ See supra n. 57. This approach has been criticized on the ground that it is over-generous to spouses at the expense of the other heirs whose interests are sacrificed in favour of those of the spouse. See Muller-Freienfels, supra n. 10, at 430; Rheinstein & Glendon, supra n. 10, at 180.

⁶⁴ Most legal systems endow the spouse, in different ways and subject to certain limitations, with the personal and household chattels as part of the intestate estate. This is the position under English law (Administration of Estates Act, 1925). In American law, the Uniform Probate Code provides in sec. 2–402 that the spouse should take the personal and household chattels at a value which is not to exceed a certain fixed sum. The surplus is added to the overall estate and is divided among the heirs according to their shares in the inheritance. Under German law, the spouse is entitled to the household chattels and the wedding gifts where he inherits together with relatives of the second parentela, or those more remote. On the other hand, where the spouse inherits together with descendants of the deceased, he is entitled to those household chattels required for running an appropriate household, and only to the extent that they are indeed required for that purpose (sec. 1932 of the BGB).

⁶⁵ The arrangements under Scandinavian legal systems are also relevant here. Under those systems, generally speaking, the regime of community of assets applies by way of resources balancing upon the dissolution of the marriage. At the same time, each spouse is given full liberty to manage his own property as he sees fit, until the event which brings the balancing into effect occurs, provided he does not diminish its value in a way that will harm the other spouse. Exceptions to this rule are immovables and chattels intended for the common use of the spouses, as well as assets vital for the spouse's employment, or for the personal use of the children – here the consent of the other spouse is required for effecting any transaction. See GB 6:4, 6:5; Sussman, H.S., “Spouses and their Property under Swedish Law” (1963) 12 Am.J. Comp. L. 553, at 560–561CrossRefGoogle Scholar.

⁶⁶ For a combined objective and subjective test within the Succession Law, see the case law on sec. 23(a), which deals with a will made by a person facing death. The Supreme Court has held that the test of the sense of impending death, which creates the circumstances justifying the granting of efficacy to an oral will, is both objective and subjective; see Rosenthal v. Tomashevski (1971) 25(i) P.D. 488; Omer v. Kogut (1975) 29(i) P.D. 107.

On a combined objective and subjective test in the field of contracts, see interpretation of sec. 14(a) of the Contracts (General Part) Law, 1973 concerning mistake as a ground for rescission. In the opinion of scholars, this ground includes an objective element alongside a subjective one. The subjective element is the casual connection between the mistake and the contractual bond; whereas the objective element lies in the fundamental nature of the mistake being determined according to the “reasonable person” test. See Shalev, G., Defects in the Formation of Contract, in Commentary on Laws Relating to Contracts, Tedeschi, G., ed. (Jerusalem, 1981, in Hebrew) 39–40Google Scholar. On a “mixed” test combining objective and subjective elements, see the recent case law regarding interpretation of the terms “good faith” and “customary manner” in secs. 12 and 39 of the Contracts (General Part) Law: Public Transport Services, Beer-Sheva Ltd., v. National Labour Court (1981) 35(i) P.D. 828 (re sec. 39); Raviv Moshe and Co. Ltd. v. Beit Yulas Ltd. (1983) 37(i) P.D. 533 (re sec. 12); and see Shalev, G., Formation of Contract, in Commentary on Laws Relating to Contracts, Tedeschi, G., ed. (supplement) (Jerusalem, 1983, in Hebrew) 7Google Scholar.

⁶⁷ Succession (Amendment No. 4) Law, 1976, supra n. 17, under which sec. 11(a) of the Succession Law was amended. In the explanatory note to the Bill amending the Succession Law on the subject of motor vehicles, presented by Arbeli-Almozlino, M.K., (1975) 73 Divrei HaKanesset 2614–2615Google Scholar, it was stressed that the amendment was intended to apply to “a motor vehicle used by the spouses”. This definition was not included in the Law itself. In a reservation put forward by M.K.s Warhaftig and Gross, they sought to prevent the application of the first part of sec. 11(a) to a motor vehicle for three reasons: First, because “a motor vehicle represents a considerable asset. It can sometimes be the principal part of the deceased's property”. Secondly, “this may be a second marriage”, and it would not be just to deprive the deceased's children of the main part of his estate in favour of his second wife. And thirdly, because the surviving spouse may marry again and thereby deprive the other heirs of the motor vehicle in favour of his new spouse: (1976) 76 Divrei HaKnesset 2404Google Scholar.

⁶⁸ Sec. 2 of the Succession Law.

⁶⁹ Sec. 65(b) of the Succession Law.

⁷⁰ Rosen-Zvi, supra n. 50, at 167 and references therein.

⁷¹ In England, a proposal was made for common ownership by the spouses of their residence during the subsistence of the marriage: see The Law Commission (No. 86), Family Law, Third Report on Family Property: The Matrimonial Home (Co-Ownership and Occupation Rights) and Household Goods (London, 1978)Google Scholar. No proposal was put forward for vesting in the surviving spouse the one-half belonging to the deceased on his death, in addition to the spouse's share of the inheritance. The committee appointed for the purpose of instituting reform of the law of succession, The Committee of Intestate Succession (CMND 8310), some of the recommendations of which were implemented and enacted in the Intestates' Act, 1952, also did not see fit to confer the residence left by the deceased on the surviving spouse in addition to the latter's share of the inheritance. The committee viewed such conferral as unjust towards the children. The spouse was granted the option of acquiring the residence in exchange for what he has inherited from the deceased's estate, wholly or in part, according to the circumstances (sec. 5 and schedule 2 of the Act).

⁷² In the Succession Bill of 1952, the rule regarding household chattels is assimilated to that regarding the residence. The arrangement as to these two categories of property in sec. 116 of the Bill is not to grant them to the spouse as part of the intestacy. Instead, sub-section (a) provides that “an heir who was living with the deceased immediately prior to his death may demand that the division of the deceased's residence and household effects be postponed”. The duration of such postponement, and which assets form part of the deceased's residence and household effects, are left to the discretion of the court (sub-sec.(b)).

In the explanatory note (ibid., at 140–141) the authors of the Bill assert that “the very idea that the deceased's spouse should receive the effects belonging to their common residence apart from his or her share of the estate appeals to us”, but they refrain from making such a proposal so long as no arrangement is proposed concerning spouses' property relations as well. As far as the residence is concerned, the authors of the Bill do not raise the idea of vesting it in the spouse in addition to his share in the estate. In the Succession Bill, 1958 (supra n. 16), the arrangement concerning the household chattels (sec. 20(a)) is similar to that which was finally passed into law in the Succession Law. With regard to the residence, sec. 115 of the 1958 Bill repeats the wording of sec. 116 of the 1952 Bill, but limits the period of postponement “to no more than six months from the death of the deceased”.

⁷³ Sec. 115 of the Succession Law. This section appears in Article D of Chapter 6 of the Law, which deals with distribution of the estate. The right of the spouse based on this provision does not create a protected tenancy. See Sayag v. Azulai (1971) 25(ii) P.D. 63; Litman v. Bar-Or (1974) 28(ii) P.D. 104.

A distinction should be made between the right to use the residence under sec. 115 of the Succession Law and the right of residence as part of the right to maintenance out of the estate, although at times there are reciprocal relations between these provisions (see Sayag, at 66). Until the Succession Law came into force, the topic of the right of the widow to residence from the estate was dealt with according to religious law and it was held that her right to residence is determined by religious law and in conformity therewith. See Rubenenko v. Rubenenko (1963) 17 P.D. 1883; Khalifa v. Khalifa, supra n. 38; Aharonov v. Eisen (1966) 20(iii) P.D. 440.

The right to residence is part of the right to maintenance out of the estate: Sayag, at 65; Litman, at 107; Widow of Deceased v. Nephew of Deceased 2 P.D.R. 278, at 281.

Case law has held that with the entry into force of the Succession Law, the right of residence is regulated exclusively by the provisions of that Law. The Court, in Sayag, at 65, and in Litman, at 107, construed sec. 148 of the Succession Law, whereby “this Law alone shall apply to … rights of maintenance out of the estate”, as applying also to the right of residence which, as already mentioned, is part of the right to maintenance out of the estate. For a differing view see Corinaldi, M., “The Relationship of the Israeli Law of Inheritance, Para. 115, to the Widow's Residential Rights under Jewish Law” (1975) 6 Diné Israel 139Google Scholar. See also Shahar, N., “Widow's Residence in Her Husband's House” (1985) 4 Mehkarei Mishpat 204Google Scholar.

⁷⁴ Sec. 11(a)(2) as amended (30 L.S.I. 152).

⁷⁵ Sec. 108.

⁷⁶ Sec. 115.

⁷⁷ 26 L.S.I. 204.

^77a Sec. 20 of the Tenants' Protection Law. In respect of business premises as well, it is sufficient that the spouses were married and lived together for six months prior to the death of the deceased.

⁷⁸ Cf. the remarks of the Minister of Justice with regard to sec. 11(a)(2) as it appeared in the Amendment Bill. (1984) 98 Divrei HaKnesset 740Google Scholar. The period of three years was proposed in the Constitution, Law and Justice Committee by M.K.s Aloni and Virshubsky, and was accepted, apparently, as a compromise. The Chairman of that Committee himself expressed doubt “whether three years is a sufficient period”. ((1985) 101 Divrei HaKnesset 2183, 2184)Google Scholar.

⁷⁹ See Maoz, and Rosen-Zvi, , “The Inheritance of the Spouse” (1984) 36 HaPraklit 15, at 47Google Scholar; and see Shava, M., “Comments on Succession Bill (Amendment No.,7) 1983 – Succession Rights Between Spouses” (1984) 10 Iyunei Mishpat 387, at 401Google Scholar.

⁸⁰ It would have perhaps been appropriate to grant the court discretion to examine the relationship between the deceased and the surviving spouse for purposes of determining the right of succession to the residence. The external test of joint residence is likely to be an arbitrary one, and may award the spouse succession to the residence despite serious disputes between the spouses, which in ordinary circumstances would have caused them to live separately. However, the implementation of such a solution raises complex problems, which would complicate the proceedings leading to the succession order. In addition, it may be asked why the court should not be permitted to take into account such circumstances in relation to the share of the surviving spouse in the other assets of the estate as well.

⁸¹ On the term “residing”, in the context of right to the residence after the death of the deceased within the provisions of sec. 115 of the Succession Law. see Rousseau v. Rousseau (1970) 24(i) P.D. 657; Sielenfreud v. Green (1977) 3l(i) P.D. 813. In the Rousseau case the court held that the term should be understood in its ordinary, plain meaning, and not as a technical legal concept. At the same time attention should be paid to the legislative intent and the protection which the section seeks to confer in the particular case – which persons does the legislator wish to protect, and in our case, what is the scope of the protection sought? The Court also held (at 660) that “a person temporarily absent from his residence even for quite a lengthy period, owing to his work or for another reason, can still be regarded as residing in that residence”. In our context, the question may well arise not only with regard to one of the spouses, but even with regard to both of them. In the same spirit, see also, on a different matter, Moussa v. Minister of the Interior (1962) 16 P.D. 69, at 76: “Domicile or residence in a particular place do not require frequent, uninterrupted physical presence therein”.

The Sielenfreud case was similar to the first category of cases described earlier in the text of this article. The spouses were about to move into a new residence that was already in their possession, but had not yet moved in when the wife died. The question was whether they could be regarded as having resided in that residence for purposes of sec. 115 of the Succession Law. The court answered this in the negative: “One can speak of a person as residing in a residence where he genuinely and in good faith makes his home and dwelling therein, whereas possession of a residence, even if it is equipped with all the requisite furniture and equipment, is not sufficient. A person can possess numerous apartments in such a way, but he only resides in the one where he has actually set up his home. In the case before us, it is not disputed that until the day of her death the deceased resided together with her husband (i.e., the widower) in the parents' house, and they resided there only because their prospective apartment was not yet ready to be lived in. That being the situation, it cannot be said that the spouses resided in the apartment, in the sense of sec. 115 of the Succession Law” (at 820).

The distinguishing factor between these two cases (Sielenfreud and Rousseau) is that in the Rousseau case, the Court may have referred to a situation where the spouses actually resided in the apartment and were absent therefrom temporarily, for various reasons, with intent to return there. In such a case they should be regarded as having continued to reside in the apartment. On the other hand, in the Sielenfreud cast the apartment had never been used for the residence of the spouses. These authorities may assist the surviving spouse in the second category of cases described in the text of the article, but they do not support the right of such a spouse in the first such category. In fact, Sielenfreud may be cited against the surviving spouse's right to the residence in the framework of sec. 11(a)(2) in the first category of cases. At the same time, as far as the amendment of sec. 11(a)(2) is concerned, we consider that Sielenfreud construes the term “residing” too literally and narrowly. Our inclination is to rely on Rousseau and to decide that one can infer from the legislative intent in this matter a goal of protecting the residence of the surviving spouse where he competes over the inheritance with distant relatives, even where it was only his intended residence, provided that intention to reside there was a perfected one. In such a case, constructive residence should be sufficient so as to vest all the rights in the residence in the surviving spouse, with a view to realizing the interest which the legislator sought to protect.

⁸² The District Court in Tel-Aviv-Jaffa construed narrowly the provision of para. (2) regarding the right of the spouse to the residence. In Re Estate of Isaac Schwartz, decd. (not published), Judge Zamir held that the 1985 Amendment No. 7 to the Succession Law, and sec. 14 thereof (transitional provision) apply – for purposes of implementing sec. 11(a)(2) of the Law – only to the surviving spouse (emphasis in original). The same was held in Estate of Levitt v. A.G. (1986) 3 P.M. 106, but was refuted on appeal: Estate of Levitt v. Kamerski (1986) 40(iii) P.D. 670. For criticism of the District Court decisions, see Rosen-Zvi and Maoz, supra n. 20, at 496–497, n. 170.

⁸³ In respect of such a case as well, the Minister of Justice raised the question, whether the provisions relating to the right of the spouse to the residence should not apply “only to a residence which is not a luxury residence”: (1984) 98 Divrei HaKnesset 740Google Scholar. In this context it should be noted that the right of homestead granted to the surviving spouse under American law (see supra n. 11) is restricted in terms of the value of the house by amounts which vary from state to state.

⁸⁴ See sec. 5 of the Interpretation Law, 1981 (35 L.S.I. 370): “Words in the singular include the plural, and vice versa”.

⁸⁵ See sec. 1 of the Interpretation Law: “This Law shall apply to every enactment … save in so far as otherwise provided with regard to the subject-matter or as anything in the subject-matter or context is inconsistent with this Law”.

⁸⁶ Cf. Wills, Probate and Administration Act, 1898 (N.S. W.) §61D. This section provides that the spouse will inherit the rights of the deceased in the matrimonial home if it served him as a “principal residence”.

⁸⁷ (1984) 98 Divrei HaKnesset 740Google Scholar.

⁸⁸ See Gardiner, G. & Martin, (ed.) Law Reform Now (London, 1964) 147Google Scholar. In Israel such a transaction is likely to be declared invalid in view of the provision of sec. 8(b) of the Succession Law whereby: “A gift made by a person which is intended to vest in the donee only upon the death of the donor is not valid unless it was made by will in accordance with the provisions of this Law”. The same applies to an agreement regarding the inheritance of a person “made during the lifetime of that person”, according to sec. 8(a).

⁸⁹ See Newman v. Dore, 275 N.Y. 371. 9 N.E. 2d 966 (1937). And see Report of the Commission on Revision of the Laws of North Carolina relating to Estates, comment to sec. 5 (1939). Cf. Gardiner & Martin, supra n. 88. at 147.

⁹⁰ For an exhaustive survey of these methods see MacDonald, W.D., Fraud on the Widow's Share (Ann Arbor, 1960)Google Scholar.

⁹¹ On this see Rosen-Zvi, supra n. 50, at 247–248, 341–342: and see supra n. 76. See also Maoz and Rosen-Zvi, supra n. 79, at 21–22.

⁹² Sohm, R., The Institutes: A Textbook of the History and System of Roman Private Law (Oxford, 3rd ed., 1907) 556–560Google Scholar; Prichard, A.M., Leage's Roman Private Law, Founded on the Institutes of Gaius and Justinian (London, 3rd ed., 1961) 252–254Google Scholar.

⁹³ Querela Inofficiosae Datis and Querela Inofficiosae Donationis.

⁹⁴ Sohm, supra1 n. 92, at 558.

⁹⁵ In Germany, see sec. 2325 of the G.C.C. which restricts cancellation of gifts to a period of 10 years; in Switzerland, sec. 527 of the S.C.C. which restricts the scope of voidable gifts. And see the institution of “legitime” in Louisiana: La. Civil Code, secs. 1194, 1493 et seq.

⁹⁶ Montgomery v. Michaels, 54 III. 2d 532; 301 N.E. 2d 465 (1973).

⁹⁷ Art. II, Part 2.

⁹⁸ Supra n. 90, at 298.

⁹⁹ Sec. 5; ibid., at 310–311. The period during which transactions may be reopened is extended in MacDonald's proposal to three years, as against two years under Israeli law, where the deceased has not retained himself any substantial right in the property; and to ten years in cases where the deceased did retain such a right. Sec. 8; ibid., at 313–314. For the way in which MacDonald reached these periods, see ibid., at 153–154. Some ten years after the enactment of the Israeli Succession Law, a similar provision was established in the English Law of Succession. See Inheritance (Provision for Family and Dependants) Act, 1975, sec. 10. This provision was enacted in conformity with the recommendations of the Law Commission, Second Report on Family Property: Family Provision on Death: Law Com. No. 61, Paras. 190–196. Cf. Family Provision Act, 1982 (N.S.W.), Pt. II, Div. Z.

¹⁰⁰ This, as opposed to the institution of maintenance out of the estate. The provisions of sec. 5(a) of the Succession Law. which disqualify a person from inheriting on the basis of his behaviour, are exceptional in this respect. This sub-section refers to a person convicted of intentionally causing or attempting to cause the death of the deceased or a person convicted of concealing, destroying or forging the last will of the deceased, or of claiming under a forged will.

¹⁰¹ On the connection between religious law. which controls the determination of status, and the Succession Law, and on the test to be applied in determining the status of a spouse in the sense of the Succession Law and in the matter of his right to inherit the deceased, see Feldman v. Feldman (1966) 20(ii) P.D. 465: Feldman v. Feldman (1966) 20(iv) P.D. 693: Englard, supra n. 46. at 204–206: Shifman, P., “The Status of Doubt” (1967) 33 Deot 153, at 163–165Google Scholar: Maoz, A., “Jurisdiction Depending on Doubt” (1976) 4 Iyunei Mishpat 598Google Scholar.

¹⁰² Cf. criticism of the vesting of the first slice from the estate in the spouse under the Intestates' Estates Act, 1952 without paying attention to the relationship which prevailed between the spouse and the deceased immediately prior to the latter's death: Gardiner & Martin, supra n. 88. at 146–147.

¹⁰³ Sec. 5(a)(1) of the Spouses (Property Relations) Law, And see Rosen-Zvi, supra n. 50, at 236–239.

¹⁰⁴ This income is not included in the estate. See sec. 147 of the Succession Law.

¹⁰⁵ See Rheinstein & Glendon, supra n. 10. at 141–142. The authors there express the opinion that just as the courts will ignore gifts inter vivos intended to deprive the spouse of his reserved share in the inheritance, so will they offset the benefits to the spouse from his imposed share in the inheritance in the latter examples.

¹⁰⁶ See infra, text at nn. 177–180.

¹⁰⁷ See supra, text to n. 90. And see MacDonald, supra n. 90, at xi.

¹⁰⁸ Generally, see Silberg, M., Personal Status in Israel (Jerusalem, 4th ed., 1965, in Hebrew) 183Google Scholaret seq.

¹⁰⁹ “On intestacy the heirs are:

(1) …

(2) the children of the deceased and their issue, his parents and their issue, his grandparents and their issue”.

¹¹⁰ “The children of the deceased take precedence over his parents; his parents take precedence over his grandparents”. On the division of the inheritance under the parentelic principle, see Sinidovska v. Administrator General (1975) 29(ii) P.D. 81.

¹¹¹ See sec. 10(2), supra n. 109.

¹¹² See sec. 17(a) of the Law. Sub-sec.(b) restricts the use that the State can make of what it inherits in this way to purposes of social welfare. In England, where there is a similar provision, the estate passes to the Crown as bona vacantia in the absence of a spouse or relative in any one of the three parentelas. See Administration of Estates Act, 1925, sec. 46(1)(vi).

Under Jewish law, there is no limit to the parentelas that participate in the inheritance, and they are even to be sought among the issue of the forefathers of the tribes of Israel, the sons of the patriarch Jacob: see Mishna, , Baba Bathra 8: 2Google Scholar; Babylonian Talmud, Baba Bathra 115a,b;andseeM. Silberg, supra n. 108, at 185–186. Similar to Jewish law is the provision of German law in sec. 1930 of the BGB. However, there also, in the absence of blood relations of the deceased, the State inherits as intestate heir (see sec. 1936). The Israeli Bill of 1952 adopted three parentelas as a “compromise position” between the liberal systems, such as Jewish law and German law, and systems which have limited even further the relatives who deserve to inherit on intestacy, as “the family circle among whose members there exists a substantial bond and to which the presumed duty of the deceased is devoted”: The Succession Bill of 1952, at 51.

¹¹³ Sec. 13 of the Law.

¹¹⁴ On the principle of representation, see Silberg, supra n. 108, ȧt 190 et seq.

¹¹⁵ A relatively smooth combination of inheritance by the spouse with the principles of inheritance by blood relationship may be found in Jewish law, where the husband takes precedence over the other heirs with regard to his wife's estate, and he inherits the whole of the estate: see Shulhan Arukh. Even Ha'Ezer 90: 1Google Scholar: Shilo, S., “Succession” in The Principles of Jewish Law, Elon, M.. ed., (Jerusalem, 1975, in Hebrew) 446, at 447–449Google Scholar.

¹¹⁶ In German law. sec. 1931 of the BGB provides that the spouse's share shall be proportional to the degree of kinship of the relatives who inherit him: one-quarter where heirs of the first parentela (i.e., descendants of the deceased) inherit with him; one-half where heirs of the second parentela (parents or their descendants) or heads of the third parentela (grandparents) inherit with him; the whole where other heirs inherit with him.

Under the American Uniform Probate Code (sec. 2–102) the same principle is applied, except that the Code favours the spouse. He inherits a fixed sum together with one-half of the estate where only descendants who are common to him and the deceased or parents of the deceased inherit with him; he inherits only the one-half (and will not be entitled to the fixed sum) where a child not common to them both is included among the descendants of the deceased; the spouse already takes the whole inheritance where his co-heirs are descendants of the parents, i.e., heirs within the second parentela.

Under South African law (Succession Act 13 of 1934, sec. 1) the spouse takes the same share as that which all descendants of the deceased take (i.e., the spouse is considered for purposes of dividing the inheritance as a child of the deceased) or a sum fixed by statute, whichever is greater; where the spouse has to compete in the inheritance with the parents of the deceased or their descendants, he takes one-half of the estate or the sum fixed by statute, whichever is the greater. In any other case, the spouse is entitled to the whole estate.

Under English law the spouse who inherits together with the descendants of the deceased receives a fixed sum together with a life interest in half the estate; where the parents of the deceased or their descendants inherit with the spouse, the latter is entitled to a fixed sum (which is greater by more than threefold than in the case where he inherits together with the deceased's descendants) along with one-half of the estate. In any other case, the spouse inherits the whole estate. See Administration of Estate Act, 1925, sec. 46, as amended by sec. 1 of the Intestates' Estates Act, 1952, and later by the Family Provision Act, 1966.

¹¹⁷ Cf. remarks of the Minister of Justice when introducing the Bill of Amendment No. 7 to the Succession Law for a first reading: (1984) 98 Divrei HaKnesset 740Google Scholar.

¹¹⁸ Full realization of the idea of equality between the spouse and the children of the deceased is effected under South African law, which places the spouse together with the children of the deceased and divides the estate into equal shares in such a way that the spouse and each of the children receive the same share of the inheritance. See supra n. 116.

¹¹⁹ Sec. 18 of the Succession Bill of 1952; sec. 20(a) of the 1958 Bill.

¹²⁰ Succession (Amendment No. 4) Law, 1976, supra n. 17.

¹²¹ Finkelstein v. Finkelstein (1968) 22(i) P.D. 618.

¹²² Cf. dictum of Elon J. in the case of Marjia v. Jubran (1979) 33(ii) P.D. 34, at 39. For this reason, the court rejected proposals put forward in case law and legal literature to determine the share of the spouse by reference to the most or least preferable among the other heirs. For the reasons behind the Finkelstein rule and its justification, see Maoz and Rosen-Zvi, supra n. 79, at 40–43. The Finkelstein rule was characterized by the President of the Supreme Court. Y. Kalian, as “a brilliant idea”. See Muller v. Raber (1982) 36(iii) P.D. 584. at 587.

¹²³ Sec. 1931 of the BGB.

¹²⁴ No less than 20 articles have been published on sec. 11 (a) of the Law. For a reference to some of them, see Maoz and Rosen-Zvi, supra n. 79. at 33. n. 86.

¹²⁵ See remarks of the President of the Supreme Court, Y. Kahan, in the case of Marjia v. Jubran, supra n. 122 at 37, and in the case of Muller v. Raber, supra n. 122, at 587.

¹²⁶ See sec. 13 of the Law.

¹²⁷ See sec. 11(a)(1). The distinction between different classes of the deceased's children was abolished in the text brought for a second reading by the Constitution, Law and Justice Committee, on the proposal of Prof. P. Shifman at the Session of the Committee on 12 June 1984. The Bill itself had preserved the distinction between “children common to him and his spouse only, or their issue” – who would have to allocate onehalf of the estate in favour of the spouse (see sec. 11(a)(1) of the Bill) and “children who are not common to him and the spouse, or their issue” – who would have to allocate only one-quarter of the estate to the spouse (para. (2)). At the same time, a conflict between the two paragraphs was avoided by the provision that where the deceased leaves children of both categories, or their descendants, the provision of para. 2 should apply and the spouse would inherit only one-quarter of the estate. For an analysis of this provision and criticism thereof, see Maoz and Rosen-Zvi, supra n. 79, at 43–44.

¹²⁸ Sec. 14(a).

¹²⁹ This outcome does not entirely follow from the wording of the amendment. At the same time, this is a possible result thereof. See Rosen-Zvi and Maoz, supra n. 20, at 467–470. For criticism of this provision, see ibid., at 470–473.

¹³⁰ See Shava, M., “Brother's Right to Inherit with a Spouse and a Parent of the Deceased” (1987) 37 HaPraklit 486Google Scholar.

¹³¹ See supra, text to nn. 17 and 120.

¹³² For discussion of the possibility that the Finkelstein case (supra n. 121) has not at all been superseded by the amendment to the Law, see Rosen-Zvi and Maoz, supra n. 20, at 480–481.

¹³³ Cf. Nassis v. Juster (1970) 24(i) P.D. 617, at 621; Shilo, supra n. 4, at 57. For an analysis of the institution of reputed spouses in Israeli law see: Malchi, E., “‘The Quasi-Wife’: On the Status of Reputed Wife in General and Israeli Law” (1957) 13 HaPraklit 234Google Scholar; Basok, H.M., “An Institution Competing with that of the Family” (1957) 2 Gevilin 30Google Scholar; Ben-Meir, Y.S., “The Reputed Wife, in Legislation and Case Law” (1965) 20 Gevilin 19Google Scholar; Farber, P. (ed.), The Reputed Wife (Tel-Aviv, 1965, in Hebrew)Google Scholar; Elon, M., Religious Legislation in the Laws of the State of Israel and the Adjudication of the Civil and Rabbinical Courts (Tel-Aviv, 1968, in Hebrew) 119Google Scholaret seq.; Friedmann, D., “The ‘Unmarried Wife’ in Israeli Law” (1972) 2 Israel Yrbk. Human Rights 287Google Scholar; Maza, A., “Common Knowledge and the Common Law Wife” (1972) 2 Iyunei Mishpat 230Google Scholar; Shava, M., “The ‘Unmarried Wife’” (1973) 3 Iyunei Mishpat 484Google Scholar; Shelah, H.P., “The Reputed Spouse” (1975) 6 Mishpatim 119Google Scholar; Shifman, P., “Marriage and Cohabitation in Israeli Law” (1981) 16 Is. L.R. 439Google Scholar; Shava, M., “The Property Rights of Spouses Cohabiting without Marriage in Israel – a Comparative Commentary” (1983) 13 Ga. J. Int'l & Comp. L. 465Google Scholar.

¹³⁴ See Shava's article in Iyunei Mishpat, ibid., at 120–128; and in Ga. J. Int'l & Comp. L., ibid., at 469.

¹³⁵ See Pfaff, E.O., “Death is Not the Great Equalizer: Division of Non-marital Property” (1980) 14 U.S.F.L.R. 157, at 159–161Google Scholar; Bruch, C.S., “Non-marital Cohabitation in the Common Law Countries: A Study in Judicial Legislative Interaction” (1981) 29 Am. J. Comp. L. 217, at 229–232CrossRefGoogle Scholar.

The Yugoslavian Federal Supreme Court, in a directive from March 1954, expressly provided that unmarried cohabiting parties have no rights of inheritance: Sarcevic, P., “Cohabitation without Marriage: The Yugoslavian Experience” (1981) 29 Am. J. Comp. L. 315, at 319CrossRefGoogle Scholar.

On the other hand, in a number of countries the right of the reputed spouse to claim provision out of the estate is recognized, whether explicitly (see Ontario: Succession Law Reform Act, 1975, sec. 64(b), 65(1)) or as a dependant of the deceased at the time of the latter's death. See for United Kingdom: Inheritance (Provision for Family and Dependants) Act, 1975, sec. 1(1)(c) and (3), cf. Malon v. Harrison (1979) 1 W.L.R. 1353; Cadwallader, C.E., “A Mistresses' Charter?” (1980) Conv. 46Google Scholar; Freeman, M.D.A. & Lyon, C.M., Cohabitation without Marriage (Alderslont, Hants, 1983) 79–83Google Scholar.

Similar legislation has been introduced in the Commonwealth. See for Australia: New South Wales: Family Provisions Act, 1982, sec. 6(1)(a)(II)(III); Queensland: Succession Act, 1981, sec. 40–41; South Australia: Inheritance (Family and Dependants Provision) Act, 1972, sec. 4(2); Western Australia: Inheritance (Family and Dependants Provision Act, 1972, sec. 7(1)(F). Cf. Tasmania Law Reform Commission, Report on Obligations Arising from de facto Relationship (1977).

In New Zealand, the reputed spouse cannot claim maintenance out of the estate for himself, but in a claim of a child born out of wedlock, the needs of his mother may also be taken into consideration. See Vaver, , “The Legal Effects of de facto Relationship” (1976) New Zealand Recent Law (N.S.) 161Google Scholar.

The rights of reputed spouses protected in the event of death may well include ancillary rights, such as the right to homestead in various states of the United States. See Douthwaite, G., Unmarried Couples and the Law (Indianapolis, Indiana, 1979) 48–49Google Scholar.

On the right to extension of a contract of lease in Sweden, see Agell, A., “The Swedish Legislation on Marriage and Cohabitation: A Journey without a Destination” (1981) 29 Am. J. Comp. L. 285, at 294CrossRefGoogle Scholar. This right, granted to the spouse under a statute of 1959, was extended in 1973 so as to cover certain cases of cohabitation.

A comprehensive reform in the legal status of reputed spouses took place in 1985 in New South Wales, following the recommendations of the N.S.W. Law Reform Commission, Report on de facto Relationships (1983). See De Facto Relationships Act, 1984, inter alia, the Wills, Probate and Administration (De Facto Relationships) Amendment Act, 1984, was enacted amending the intestacy provisions of the Wills, Probate and Administration Act, 1898. The amendment granted the reputed spouse the same share to which the married spouse of the deceased is entitled by statute (sec. 61 (b)(3b)), and further provided that whenever the statute refers to “husband or wife” this term should include “the de facto husband or de facto wife”. The statute goes as far as to provide that where the deceased does not live with his lawful spouse in the two years prior to his death, then his reputed spouse for the same period will inherit the share granted by statute to the spouse (sec. 61b(3a)(a)). It is interesting to note that the statute provides, as a condition for recognition of the status of reputed spouses, that the two spouses should have been, at the time of the death of the deceased, “sole partner(s) in a de facto relationship” (sec. 32G), and this despite the fact that their status as reputed spouses is not affected if at the same time they were married to others.

A qualifying period for acquiring rights in the estate through the status of reputed spouse – such as the period of two years in the New South Wales legislation – is usual in legislation of this kind. An example which is outstanding for its rigidity is sec. 20 of the Law of Inheritance of the Sap of Kovno (Yugoslavia). The section granted rights of inheritance to one who cohabited with the deceased for 15 years. This period is shortened to five years if the couple had children in common.

¹³⁶ Friedmann, supra n. 133, at 303–304.

¹³⁷ Levi v. Director of Courts (1982) 36(iv) P.D. 123, at 128; see also judgment of Etzioni J. in A.B. v. Attorney-General (1968) 59 P.M. 270, at 274, by which the term “spouse”, which appeared in sec. 3(1) of the Adoption of Children Law, 1960 (14 L.S.I. 93), is not to be applied to one who was a reputed spouse. Cf. remarks of Behor J. in Steinitz v. Pension Fund of Members of Egged Ltd. (1979) 33(iii) P.D. 556, at 558. In respect of the Spouses (Property Relations) Law, 1973, as well, the term “spouse” does not include reputed spouses: see Cohen v. A.G. (1985) 39(i) P.D. 673. See also Shava in Ga. J. Int'l & Comp. L., supra n. 133, at 468, as well as in Iyunei Mishpat, supra n. 133, at 510. See, on the other hand, Friedmann, supra n. 133, at 303–304, 314–315, and cf. Habib v. Kardosh (1966) 52 P.M. 213, at 216. In discussing the term “surviving spouse”, in succession statutes of common law countries, Bruch writes that “the term is unlikely to be expended by judicial interpretation to include de facto spouses”. Bruch, supra n. 135, at 230.

¹³⁸ According to this approach, reputed spouses will not have any rights, for example, in respect of sec. 115 of the Law; see M. Shava in Iyunei Mishpat, supra n. 133, at 491. In other statutes, rights have been conferred on reputed spouses by means of defining the term “spouse” in the statute as including reputed spouses – for example, in sec. 1 of the Tenants' Protection Law (supra n. 77). It should be noted that at the time of the enactment of the Succession Law, M.K.s Nir and Kushnir proposed that a definition of the term “spouse” in sec. 11 be added, and that it include also “a person reputed to be the spouse of the deceased”. The Knesset, however, preferred the existing arrangement.

¹³⁹ See supra, chap. III(F)(3).

¹⁴⁰ (1985) 101 Divrei HaKnesset 2184Google Scholar: “wherever ‘spouse’ is mentioned, the reference is also to a reputed husband or wife”. As to Divrei HaKnesset as a source for uncovering the legislative intent, see Savitsky v. Minister of Finance (1965) 19(ii) P.D. 369, at 379; Danker & Sons Ltd. v. Fast and Mitrani (1976) 30(ii) P.D. 796, at 801; HaMeretz Ltd. v. Greiev (1973) 27(i) P.D. 423, at 431; Assessing Officer v. Arisson (1974) 28(i) P.D. 789, at 794; Estate of Freidmann, decd. v. Eilat-Ashkelon Oil Pipeline Co. Ltd. (1982) 36(ii) P.D. 578, at 590; Bar Ilan v. Director of Land Settlement Tax (1982) 36(iv) P.D. 654, at 659. And see Barak, A., “The Intention of the Legislature: Reality or Fiction?” (1985) 36 HaPraklit 165, at 181Google Scholar: “The remarks of the chairman of the Knesset committee that dealt with the Bill, who presents the Law for its second reading, where it is passed without alteration on the third reading, are, on the normative plane, to be regarded as the intention of the legislator”. See also “Isras” Israel-Rassco Ltd. v. Toledano (1969) 23(i) P.D. 533, at 539; Moch v. Assessing Officer (1974) 28(i) P.D. 414, at 420; Lipavski-Halifi v. Minister of Justice (1973) 27(i) P.D. 719, at 723. Cf. Maoz, A., “Who is a Jew? – Much Ado About Nothing” (1977) 31 HaPraklit 271, at 274–275Google Scholar.

¹⁴¹ On the context as a guide to the purpose of legislation, see Barak, supra n. 140 at 185. And see Alonzo v. Ben-Dror (1956) 10 P.D. 97, at 104; Zafran v. Moser (1980) 34(iv) P.D. 831, at 835; Bader v. Minister of Interior (1953) 7 P.D. 366, at 395. See also Barak, A., “Interpretation and Adjudication: Elements of an Israeli Theory of Statutory Interpretation” (1984) 10 Iyunei Mishpat 467, at 486Google Scholar.

¹⁴² See remarks of H. Cohn J. in State of Israel v. Pessler (1962)16 P.D. 102, at 104. Silberg J. wrote that the definition of the “reputed wife” was “as difficult as parting the Red Sea or as impossible as squaring the circle”: Daradian v. Amidar (1965) 19(iii) P.D. 259, at 261.

¹⁴³ Supra n. 133, at 619.

¹⁴⁴ In a reservation to secs. 55 and 57(c) of the Law, which was rejected, Meridor, M.K., proposed that it be expressly stated that the “common household” referred to in those sections should be that of “spouses”, thus ensuring that it should not apply to other relatives, such as father and daughter or a brother and sister, conducting a common household: (1965) 42 Divrei HaKnesset 1004, 1008Google Scholar.

¹⁴⁵ In this sense the institution of the reputed wife as spouse is similar to that of concubinage as recognized in Jewish law. “Concubine” has been defined by Prof. Falk as “a woman living permanently with one man without being lawfully married to him”: Encyclopaedia Biblica (Jerusalem, 1971, in Hebrew) vol. 6, p. 456Google Scholar. Indeed, Nachmonides (Ramban), held that “if an unmarried man cohabits with an unmarried woman, with the intention of concubinage, i.e., that she should be devoted to one man, then this is permitted”: Reservation to the Book of Commands, Root E. Such a concubine differs from a “kedesha”, i.e., a woman with whom the relationship is one of prostitution: Code of Maimonides, Book of Women, Laws Concerning Marriage, 1, 4. Ra'abad, whose opinion is the same as that of Nachmonides, defined a concubine by using the word in a way that contains the two elements which the Supreme Court attributed to the reputed spouse: “linguists explain the word ‘pilegesh’ (concubine) as a word which is made up of two parts, the second of which is reversed – ‘pi-shagal’, which means that she is sometimes available for carnal knowledge, (‘shegal’), but also to serve the household”: Reservation to Maimonides, Laws Concerning Marriage, 1, 4. Indeed, following a comprehensive study of the question of concubinage. Dr. Ellinson asserts that “the halakhic status of concubinage can be conferred on the relationship of ‘the reputed wife’”: Ellinson, G., Non-Halakhic Marriage = A Study of the Rabbinic Sources (Tel Aviv, 1975, in Hebrew) 96Google Scholar. Kister J. compares the concubine with the reputed wife in Zemulun v. Minister of the Interior (1966) 20(iv) P.D. 645. at 660. Etzioni J. has reservations about this comparison in Rosenberg v. Shtesl ( 1975) 29(i) P.D. 505, at 510, although he accepts Kister J.'s definition of the reputed wife, which is drawn, inter alia, from the content of concubinage. Berinson J. also dissents from this comparison, and distinguishes between the reputed wife and concubinage. See the Nassis case, supra n. 133, at 619. It would seem that these are reservations with regard to the popular concept of concubinage, which identifies it with prostitution, not with regard to the halakhic concept thereof. For differing views as to permitting concubinage, see Otzar Haposkin on Shulhan Arukh. Even Ha'ezer. 26. 1.

¹⁴⁶ Supra n. 133, at 621. On the difficulties of proving the relationship of reputed spouses in other legal systems see: Eekelaar, J., Family Law and Social Policy (London, 1978) 254–255Google Scholar; Deech, R., “A Case Against Legal Recognition of Cohabitation” in Marriage & Cohabitation in Contemporary Societies, Eekelaar, J.M. & Katz, S.N., eds. (Toronto, 1980) 300Google Scholar.

¹⁴⁷ A.G. v. Shukran (1985) 39(ii) P.D. 690, at 693–694.

¹⁴⁸ Klinghoffer, M.K., urged that sec. 55 of the Law include a requirement that the relationship of reputed spouses should have been a continuous one for at least two years before the death of the deceased, so as to prevent “provisional and transient, perhaps even involuntary, relations between non-married persons turning into a marital relationship for purposes of the Succession Law”. (1965) 42 Divrei HaKnesset 1011–1012Google Scholar.

¹⁴⁹ Cf. remarks of Kister J. in Bimbaum v. Levine (1973) 27(i) P.D. 645, at 648.

¹⁵⁰ For this reason, Prof. M. Shava, supra n. 79, at 402, is of the opinion that in such a case the condition entitling the surviving spouse to the inheritance is not fulfilled, in spite of the fact that even in his opinion this is an “undesirable” situation (ibid., at 401). His remarks are directed to the Bill under which the duration of the marriage settled the fate of the whole inheritance where the deceased's spouse had to compete with grandparents or with brothers or sisters or their descendants. Our view, as we will show below, is different. We think that one can indeed reach a satisfactory interpretation of the provision.

¹⁵¹ The surviving partner will not discharge his duty by relying on the period in the past, during which he was the reputed spouse of the deceased prior to their marriage, even if that period lasted for more than 3 years. The condition that “at the time of the death” of the deceased, neither of them was married to another person has been construed in the case law as applying to the whole of their relationship. In Kister J.'s words: “In order that a person receive a share of the inheritance under sec. 55 of the Succession Law, what is required is the existence of family life in a common household immediately prior to the death of the deceased and even a connection with family life that existed in the past is not sufficient for this purpose”. Supra n. 149, at 649.

¹⁵² Cf. Shava, in Ga. J. Int'l & Comp. L., supra n. 133, at 467. See generally, P. Festy, “Aspects demographiques de la formation de la famille en europe occidentale” in Marriage and Cohabitation in Contemporary Societies, supra n. 146, at 6–8; Skolnick, A., “The Social Contents of Cohabitation” (1981) 29 Am. J. Comp. L. 339, at 340–344CrossRefGoogle Scholar; N.S.W. Law Reform Commission, Report on de facto Relationships (1983) 41 et seq., 97–98.

¹⁵³ Sec. 3 of the Law provides that such people include “Anyone who was living at the time when the deceased died”, as well as “A person who was born within 300 days after the death of the deceased”.

¹⁵⁴ See Cohn, supra n. 13, at 257.

¹⁵⁵ This is the institution of “Saisine” known to French law. See Lawson, F.H. & Anton, A.E., Amos and Walton's Introduction to French Law (3rd ed., 1966) 305Google Scholar; Cohn, supra n. 13, at 257–258; Cf. Muller-Freienfels, supra n. 10, at 443–444. And see Chap. Six of the Succession Law. See, extensively, Silberg, supra n. 108. at 269–284.

¹⁵⁶ See sec. 1922 of the BGB and the sources mentioned in n. 155 supra.

¹⁵⁷ See Miller, supra n. 14, at 71 et seq. Other legal systems adopt intermediate methods between the two approaches. Thus, for example, there are states of the United States in which the principle of automatic succession applies to land but not to movables; see Rheinstein & Glendon, supra n. 23, at 482 et seq.

¹⁵⁸ Feig v. Spitzkofetz (1973) 27(i) P.D. 355, at 388; see also Director of Estate Duty v. Gottlieb (1955) 9 P.D. 347; Wolfsohn v. Ramigolski (1956) 10 P.D. 1020. at 1024; Biederman v. Superintendent of Land Registration (1971) 25(ii) P.D. 204; Chai v. Cohen (1971) 25(ii) P.D. 339, at 346.

¹⁵⁹ See Muller-Freienfels, supra n. 10. at 444; BGB, sec. 1945.

¹⁶⁰ Sec. 6 of the Succession Law.

¹⁶¹ Sec. 15 of the Bill. This arrangement was laid down in the wake of that provided for in the legal systems of various continental countries such as Switzerland, Germany, Italy, Sweden and Greece, and even England, and in contrast to the provision in French law. See explanatory note to sec. 15, ibid.

¹⁶² Sec. 21 of the Bill.

¹⁶³ The list of those who are incapable of succeeding is specified in sec. 5 of the Law, and includes a person who has been convicted of intentionally causing or attempting to cause the death of the deceased, unless the deceased forgave him this “in writing or by the making of a will in his favour”; as well as a person who has been convicted of concealing, destroying or forging a will, or of claiming under a forged will.

¹⁶⁴ Sec. 14. last part, of the original Law.

¹⁶⁵ See supra n. 162, and see (1984) 98 Divrei HaKnesset 741Google Scholar and explanatory note to sec. 6(b) of the 1983 Bill (H.H. no. 1653, p. 90).

¹⁶⁶ This also applies to a beneficiary under a will who is found disqualified from inheriting. Sec. 41 enables a testator to “make a bequest to two persons to the effect that the second shall take if the first does not”. In such a case the second beneficiary takes the place of the one who has been found disqualified to succeed or who has renounced in a general way his share of the estate.

¹⁶⁷ On renunciation before the law was amended, see Wolf, E., “Renunciation by an Heir of his Share in the Estate” (1974) 5 Mishpatim 466Google Scholar.

¹⁶⁸ On the legal position prior to the enactment of the Succession Law, see Strauss, P.H., Laws of Succession in Israel (Tel Aviv, 1970, in Hebrew) 33Google Scholar; Silberg, supra n. 131, at 281 et seq.; Tedeschi, G., “Heir's Renunciation and Representation” (1981) 34 HaPraklit 5Google Scholar; Perles, P.S., “Notes on the Succession Law, 1965 (Sections 6 & 7)” (1967) 23 HaPraklit 258, at 259Google Scholar; Wolf, supra n. 167. See also the following cases: Berniker v Burslein (1951) 5 P.D. 306; Gutwether v. Friedman (1953) 7 P.D. 746; Director of Estate Duty v. Gottlieb, supra n. 158; Chai v. Cohen, supra n. 158; Director of Estate v. Dickermann (1958) 12 P.D. 869.

¹⁶⁹ The assignment is regulated by sec. 7 of the Succession Law. On the difference between renunciation and assignment, see Dekalo v. Munitz (1975) 29(i) P.D. 464; Munitz v. Dekalo (1976) 30(i) P.D. 242; see also Schlechter v. Harash (1970) 24(ii) P.D. 138. See also remarks of Una, M.K., (1965) 42 Divrei HaKnesset 961Google Scholar.

¹⁷⁰ Tedeschi, supra n. 168, at 9. On the view that the inheritance of the beneficiary derives directly from the deceased, see also Silberg, supra n. 108, at 283. Despite the fact that Silberg deals there with the legal position prior to the Succession Law, his remarks can be referred to since they are based on the immediate “falling in” of the inheritance, a principle which is also a basis of the Succession Law. See also the Gutwether rule, supra n. 168, at 752.

¹⁷¹ To use the terminology of sec. 6(b) of the Succession Law.

¹⁷² And indeed, before the Succession Law expressly provided for renunciation of an inheritance in favour of specific beneficiaries rather than merely renunciation in general terms, the case law had held that renunciation of part of the estate in favour of another person amounts to an assignment and not an act of renunciation which excludes the person renouncing from the list of heirs retroactively; see the Gottlieb rule, supra n. 158, at 350, 357; see also Zik v. State of Israel (1978) 32(i) P.D. 662, at 665.

¹⁷³ See Tedeschi, supra n. 168, at 10; see also Silberg, supra n. 108, at 283.

¹⁷⁴ Sec. 6(b) of the Succession Law (emphasis added).,

¹⁷⁵ In the words of Prof. Tedeschi supra n. 168, at 8: “That does not mean that we have to discount … the possibility that the Israeli legislator has added a dimension of his own to legal phenomenology, which legal theory has to take into consideration and find the right definition”.

¹⁷⁶ The power given to an heir to renounce his share of the estate raises an interesting question: does the beneficiary in whose favour the renunciation is made take the place of the renouncing heir in the table of heirs competing with the spouse over the estate, or does the beneficiary take his place in the appropriate alternative within sec. 11(a) as if he were an heir ab initio? This possibility is, prima facie, feasible in view of the fact that once the renunciation has been effected, the renouncing heir is regarded “never to have been an heir” and the share of the beneficiary comes to him, so to say, directly from the deceased. If this is indeed the outcome, then a conflict may develop anew between the various alternatives of sec. 11(a) of the Law, as for example, where one of the parents inheriting their son renounces in favour of the deceased's brother. In such a case the need would arise to settle the conflict in a way similar to that laid down in the Finkelstein case, supra n. 121, whereas, and in order to obviate such a need, Amendment No. 7 of the Succession Law was enacted. We consider such a conflict to be neither inevitable nor even likely. Renunciation in favour of another person concerns the defined share of the renouncing heir in the estate, in its entirety or in part. We consider that a person becoming an heir by virtue of renunciation, i.e., by virtue of the renouncing heir's exercising his right of choice, does not inherit in his own right but rather by virtue of the choice made by the renouncing heir. This choice relates, in the words of the Law, to the “share” of the renouncing heir, not to the independent share of the beneficiary as if he were an heir ab initio. The fact that from a legal point of view the renouncing heir is considered not to have been an heir ab initio does not necessarily mean that one who becomes an heir by virtue of renunciation becomes an independent heir who stands, in his own right, in his appropriate alternative.

The fictitious assumption laid down in the Law, whereby the renouncing heir is to be “deemed never to have been an heir”, operates on the fundamental level of the consequences of renunciation in respect of the renouncing heir and as regards the rights and obligations of the beneficiary in the estate. It does not create an additional source for granting succession, nor does it replace the intestacy provisions; cf. Tedeschi, supra n. 168, at 9. We therefore consider that the heir, by virtue of the choice made by a renouncing heir, should fall into that category under sec. 11 (a) to which the renouncing heir belonged. See also Rosen-Zvi and Maoz, supra n. 20, at 477–481.

¹⁷⁷ Parry, D.H., The Law of Succession Testate and Intestate (London, 2nd ed., 1947) 158Google Scholar.

¹⁷⁸ See, for England, Committee on the Laws of Intestate Succession, Cmnd. No. 8310 (1957) 3–7Google Scholar. In drawing up its recommendations for intestacy, the Committee examined a selection of wills so as to learn from them the most desirable arrangement for deceased persons who did not trouble to write out a will. Prof. Dunham writes: “This is a unique area in which quantitative research based on experience can be useful in the legislative process”: Dunham, A., “The Method, Process and Frequency of Wealth Transmission at Death” (1962–1963) 20 Ch.U.L.R. 141Google Scholar.

¹⁷⁹ “This rule we must hold by; that when there are no more express indications of will, it must be supposed that every one intended, with respect to his own succession, that which the law or custom of the people directs”: Grotti, Hugonis, De Jure Belli et Pacis, Vol. 1 (Cambridge, 1853) 369–370Google Scholar. Cf. Mellows, A.R., The Law of Succession (London, 1970) 217Google Scholar.

Similar logic guided the legislator in enacting the Spouses (Property Relations) Law, 1973, sec. 3(a) of which provides: “Where the spouses have not made a property agreement or, where they have made such an agreement, in so far as it does not otherwise provide, they shall be regarded as having agreed to a resources-balancing arrangement in accordance with this chapter …”. The same applies to the rules regulating co-operative houses, under the provisions of sec. 64 of the Land Law, 1969.

¹⁸⁰ Unlike percentages of those making wills in countries that have such a tradition. Thus, only 8–9% of all succession Files dealt with by the Probate court of New South Wales are cases of intestacy. In the remaining 91–92% of cases, wills exist. See N.S.W. Law Reform Commission, Report on de facto Relationships (1983) 237–238Google Scholar, n. 1; Cf. N.S.W. Law Reform Commission, Working Papers on Testator's Family Maintenance and Guardianship of Infants Act, 1916 (1974) 164Google Scholar.

¹⁸¹ See Laufer, J., “Conference on Proposed Israeli Succession Law” (1953) 2 Am. J. Comp. L. 136Google Scholar. See also supra n. 2.

¹⁸² For example, the provision of sec. 63 as to reconsideration of inter vivos transactions effected by the deceased, so as to allow satisfaction of the right to maintenance out of the estate; see supra, text at nn. 97–98. Only in 1975 was a parallel provision enacted in English law; see Inheritance (Provision for Family and Dependants) Act, 1975, sec. 10. See supra n. 99.

¹⁸³ See explanatory note to Amendment Bill of 1983, supra n. 165, at 93. See also supra, text at n. 20, and sec. 11(a)(3), last para., of the Law. See also supra n. 20.

¹⁸⁴ H.H., supra n. 165, at 91.

¹⁸⁵ Shilo, supra n. 4, at 52.

¹⁸⁶ See Shava, supra n. 130, according to whom the principle of representation continues to apply as between the heirs but not in respect of the share of the spouse. Even given this view, our criticism remains relevant. Under his interpretation, the brother or sister would be entitled to the preferential share of the spouse, whereas under our interpretation it is the surviving parent who is entitled to that share. Both outcomes are unjustifiable.

¹⁸⁷ Under Shava's interpretation (supra n. 130, at 493, n. 24) the descendants of the grandparents would inherit the share. At any rate, the spouse will not be entitled to the share even in a situation where he inherits together with a more distant relative.

¹⁸⁸ Explanatory note to the Succession (Amendment No. 7) Bill, 1983 supra n. 165, at 93.

¹⁸⁹ It is not surprising in view of the legislator's approach, that even before the ink was dry on Amendment No. 7 to the Succession Law, the Ministry of Justice initiated further amendments to the Law, including amendments to those introduced by Amendment No. 7; see Memorandum of Succession (Amendment No. 8) Bill, 1985.

¹⁹⁰ The question whether there should be any difference between children common to the deceased and the surviving spouse and those not common to them, is one of legal policy, and was not dealt with in this article. This difference basically existed prior to the enactment of the last amendment to the Succession Law (Amendment No. 7 of 1985), which abolished this difference not because of policy considerations but rather because of technical difficulties. In the proposal presented in this article, a suggestion is given how to overcome these technical difficulties. This is in keeping with our approach that matters of policy should not be overshadowed by technical considerations.

¹⁹¹ A further provision which deserves severe criticism is that of para. 14 of the amending Law. This section provides that the substantive provisions of the Law “shall apply also to the succession of a person who died before the publication of this Law. provided that on the day of publication a succession order had not yet been issued”. This provision contradicts one of the fundamental principles of the Israeli system of succession, whereby a person disposing of his estate prior to death has the full freedom to depart from any statutory provision as to succession of which he does not approve. This principle guided the initiators of the latest amendment to the Law, too; see remarks of the Minister of Justice ((1984) 98 Divrei HaKnesset 740)Google Scholar and of the Chairman of the Constitution. Law and Justice Committee ((1985) 101 Divrei HaKnesset 2184Google Scholar). Obviously, a person who died before the amendments to the Law were passed or even proposed is deprived of this freedom, and in respect of such a person the amending provisions become binding. This outcome is particularly serious given the universal system of succession prevailing under the Succession Law. In this system, the estate passes to the heirs on the death of the deceased without it being necessary that there exist a succession order. See supra, text at nn. 153–158. The retroactive denial of succession rights unjustifiably prejudices the original heirs and confiscate proprietary rights duly acquired: and this, by means of retroactive legislation that is inconsistent with substantive principles of the rule of law. Cf. Rimon v. Trustee of the Assets of Shpesels (1966) 20(i) P.D. 401: Director of Land Appreciation Tax v. Alkoni (1985) 39(iii) P.D. 169, at 176. And see the guiding remarks of Chase J. in the case of Calder v. Bull. 3 Dall (U.S.) 386, at 391: 1 L.Ed. 648, at 650 (1978).

The retroactive application of the provisions of the Amendment, without any time constraint, also introduces an element of uncertainty as to assets transferred to heirs otherwise than under a succession order and which are nc longer in specie in the hands of those heirs; moreover, it encourages the reconsideration of matters of succession which have already been settled, and the inundation of the courts with new-old disputes. For examples of the serious problems created by retroactive application of laws, see the Levitt and Schwartz cases, supra n. 82, and see Glazevski v. A.G. (1985) 39(ii) P.D. 551, at 554.

We would add that most of the above criticism is also applicable to the provision which retroactively applies the provision as to declaring a defective will to be valid (para. 4 of the 1985 Law), although this does not amount to frustration of the deceased's wishes.