QUESTION: If a testator (a person who makes a will) draws up a legal
which makes provisions that run counter to Torah law (e.g., the oldest son
is not given a "double portion" of the inheritance), and the will is
probated in court, will beis din overturn the will if its validity is
contested by the heirs?
DISCUSSION: Drawing up a legal will whose provisions run counter to
Torah's laws of inheritance is strictly forbidden by the Torah, and every
effort should be made to educate the public regarding the obligation of
writing a will according to halachah. But in the event that such a will
was drawn up by an attorney and probated in court, either out of the
testator's ignorance or because of his disregard for Torah Law, there is a
dispute among the poskim whether or not it can be overturned by beis din.
Some hold that if the will is contested in beis din as being contrary
to halachah, beis din may declare the will null and void and redistribute
the estate according to Torah law.(1) Other poskim, however, hold that a
legal will which was probated in court is valid and cannot be contested in
To better understand the issues involved, let us list some of the basic
differences that exist between the Torah's laws of inheritance and the
Children: According to civil law, all children -sons and daughters,
adopted or natural - inherit equally.(3) According to the halachah, when
there are natural sons, daughters and adopted sons do not inherit the
estate at all.
Spouse: According to civil law, upon the death of a spouse, the
surviving spouse inherits the estate. According to Torah law, a husband
inherits from his wife but a wife does not inherit from her husband; the
Maternal relatives - According to civil law there is no distinction
between paternal or maternal relatives. The halachah, however, holds that
maternal relatives are not considered relatives regarding the halachos of
First born - Civil law does not differentiate between the first born
and his younger brothers. The halachah does; the first born receives
a "double portion" [of certain parts] of the estate.
So if, for instance, one draws up a legal will where he divides his estate
equally between his sons and daughters and the estate is probated in
court, the poskim debate whether or not the sons have the right to contest
the will in beis din, as the division is blatantly contrary to halachah.
Beis din will then have to rule whether or not they should disregard the
deceased's wishes and redivide the estate according to the halachah.
Since there are conflicting views as to the validity of a non-halachic
will, and the final ruling will depend on a host of factors, one is well
advised to write a will with rabbinical guidance. Otherwise, he runs the
risk of having his will overturned by a future ruling of beis din.
QUESTION: Is there any leeway in Torah law for a testator to divide
estate in a manner that is at variance with any of the four points
enumerated above? For example, if a testator wanted to disinherit a son,
could he do so halachically?
DISCUSSION: There is leeway and he may do so. While, in general,
were strongly critical of those who do not follow the Torah's guidelines
in matters of inheritance,(4) the halachah recognizes that there are many
factors involved in inheritance laws (financial, societal, emotional,
familial) that the situation may demand an alternate course of action.(5)
For example, we mentioned earlier that according to the Torah daughters do
not inherit their father's estate when there are sons. But because this
could result in familial strife,(6) in reducing young women to poverty
upon the death of their father, or in ruining their chances of marriage
for lack of a dowry,(7) Rabbinic leaders searched for halachically
permitted methods whereby daughters, too, could inherit at least part of
the estate, and indeed, this has become the norm.(8)
There are a number of halachic methods available whereby one may
distribute a significant part of his estate according to his wishes, as
long as a certain percentage(9) of it is distributed according to the
Torah's laws of inheritance.(10) One should contact a Torah observant
lawyer or beis din and have them draw up the required documents. But it is
imperative that all changes from the Torah's laws of inheritance be
stipulated and finalized prior to the death of the testator. If, for any
reason, the testator failed to prepare a halachic will, his estate will be
probated by beis din according to Torah law, though it may run counter to
his true wishes.
QUESTION: In the U.S. and other countries, the law allows one to
personal bankruptcy which frees him from the obligation of paying back his
debts. Does the halachah, too, recognize the concept of personal
DISCUSSION: No, it does not. While one who declares personal
not legally obligated to pay back his debts, he is still obligated to pay
them back under Torah law. Thus one who avoids paying his debts because he
has declared bankruptcy violates the Torah prohibition against stealing.
Even if one filed for bankruptcy years back and he has all but forgotten
about his debts since he was legally exempt from paying them, he is still
obligated to make every effort to pay back all of his debts, either to his
creditors or, if they are no longer alive, to their estate. The legal
concept of "statute of limitations" is not recognized by the halachah.(12)
QUESTION: Does one fulfill his obligation of reciting Kerias Shema
fails to pronounce each word correctly according to the rules of dikduk?
DISCUSSION: Chazal attach great significance to pronouncing the
Kerias Shema correctly, going as far as to say "that one who is particular
about reading Shema correctly will be rewarded with a "cooled down"
geheinom".(13) Still, Shulchan Aruch rules that b'diavad one fulfills his
obligation of Shema even if he was not particular to pronounce each word
correctly (e.g., he did not correctly accent each syllable) as long as he
clearly articulated every single word and every single letter.
In particular, Chazal were concerned about words whose last letter is the
same as the first letter of the next word. In the words bechal levavecha,
for example, the letter lamed is both at the end of bechal and at the
beginning of levovecha. Both lameds need to be clearly and distinctly
pronounced, necessitating a slight pause between the two words; otherwise,
the two words will sound like one long word - bechalevavecha. The same
holds true for al levavchem, va'avadetem meheirah, and many others.(14)
It is interesting, though, that while Chazal specifically single out
bechal levavecha as one of the word combinations where a pause is
necessary, this particular pause must be extremely brief; otherwise, one
runs afoul of a different grammatical rule: These two words are connected
with a makaf, a hyphen, which means that they are supposed to be read
together with no pause between them. Is this not a contradiction - on the
one hand a pause is necessary to separate the two lameds, while on the
other hand, the two words are supposed to be read together?(15)
The solution is not to pause fully and leave a space between these two
words [like we would between similar combinations, e.g. va'avadetem
meheirah], but rather leave a hair-breadth between them - enunciating both
lameds clearly and accenting the second word, levavecha.(16) One would be
well advised to practice reading these words in advance, so that when he
recites Kerias Shema the correct pronunciation will come easily.(17)
1 See Pischei Choshen, Yerushah 4, note 85 quoting several poskim; Minchas
3 Laws concerning adopted children vary from state to state.
4 Bava Basra 133b, Shulchan Aruch C.M. 282:1.
5 See Ketzos ha-Shulchan C.M. 282, Igros Moshe C.M. 2:49. Minchas Yitzchak
3:135 and Shevet ha-Levi 4:216.
6 See Rama C.M. 257:2
7 See Teshuvos Chasam Sofer E.H. 1:147.
8 See Rama E.H. 90:1; 108:3; 113:2; Maharsham 2:224-29.
9 While all poskim agree that a "sizable" percentage of the estate be
distributed according to Torah law, there are different opinions as to the
exact percentage. In Igros Moshe C.M. 2:50 Harav M. Feinstein writes that
leaving a thousand dollars per son is considered a sizable amount, while
in another responsum (C.M. 2:49) he recommends that a fifth of the estate
be probated according to Torah Law. See also Igros Moshe E.H. 1:110 where
he writes that the house where the deceased lived should be probated
according to Torah law, while the rest of the estate can be allocated
according to his wishes.
10 See Kuntress Mdor L'dor and Mishapt ha-Tzvahah, pg. 66.