Israeli Courts Grapple With International Wills and Foreign Property
Israeli inheritance registrars and family courts annually receive applications for probate of wills from individuals who lived or died abroad, leaving behind assets in Israel. When processing such cases, courts typically require expert opinions on the foreign law of the deceased's country of residence. These opinions clarify the will's validity abroad and how that jurisdiction's laws govern assets located outside its borders, including in Israel.
The need for such analysis stems from differing legal systems. Israel's legal system, influenced by common law, emphasizes testamentary freedom, allowing individuals broad discretion in distributing their property, subject to capacity, proper execution, and public policy. Conversely, some civil law countries, particularly in Europe and Latin America, impose limitations on this freedom, often rooted in Napoleonic Code principles that mandate a portion of the estate go to "forced heirs," such as specific family members, regardless of the testator's wishes.
Legal systems vary significantly in how they handle international inheritance. Under the Roman system, a single law, usually that of the deceased's domicile at death, governs the entire estate, irrespective of asset location. Israel's inheritance law generally follows this principle, as affirmed by the Supreme Court in cases involving Argentinian law. In contrast, the German system applies the law of the situs for each asset; thus, an asset in Israel would be subject to Israeli law, while an asset in Uruguay would be governed by Uruguayan law.
A mixed system also exists, where the applicable law depends on the asset type. Real estate is typically governed by the law of its location, while movable property and financial assets fall under the law of the deceased's domicile. Lawyers and notaries drafting wills for individuals with international assets must exercise caution. A will drafted solely according to Israeli law may not achieve the testator's intended distribution if it conflicts with foreign legal requirements, potentially leading to unintended consequences for heirs and legal liability for the drafter.
For instance, a father with two sons, one in Israel and one in Colombia, owning property in both countries, might bequeath each son the property where they reside. While this might be valid under Israeli law, Colombian law's restrictions on testamentary freedom could result in the Colombian property being divided between both sons, contrary to the father's wishes. Proactively examining foreign law during the will drafting process can prevent unexpected asset distribution and inheritance disputes.
