In this week’s parsha, we study about Yaakov’s final will to his sons before his passing. This loosely relates to the following shaylah I was asked a few years back.
Yonasan, who is originally from a non-observant background, called me with the following shaylah:
"I am adopted, and my adoptive father recently passed away. My parents, meaning the couple who adopted me, eventually divorced, and later my father remarried, although there is a halachic problem with his second marriage. My adoptive father was a kohen, and his second wife, Martha, was a divorcee. My father’s final will, which was drafted when he was ill and very dependent on Martha, was completely different from his previous will and left virtually all his property to her. Uncle Jack, my adoptive father’s brother, is very upset about the will, believing that this was certainly not my father’s intentions and that it can be overturned in court. This would make me the legal heir to my father’s estate, although halachically I am not his son. Uncle Jack wants to file a lawsuit over the matter; however, he has no legal recourse to do so since the civil law does not consider him my father’s heir. May I file a lawsuit to overturn the will?"
This shaylah is indeed as complicated halachically as it sounds, and actually involves three different areas of halacha:
I. Who is the heir?
II. What is the halachic status of a will?
III. May one file the lawsuit in secular court?
IV. In addition, there is a fourth halachic issue that must be addressed, a question of yibum, which I will discuss later.
I will explain each area of halacha mentioned above in order to explain the procedure that I suggested.
I. WHO IS THE HEIR?
Although civil law considers Yonasan the child of his adoptive parents for all matters, including that he is their legal heir, the adoption did not make him their biological son. Indeed the Torah states that someone who raises a child is considered as if he gave birth to him; however, the adopted child does not inherit unless he receives the property as some form of gift, as I will explain.
Thus although Yonasan is his father’s legal heir (ignoring the will), halacha does not consider him an heir automatically unless his father made those arrangements. Since the will made other accommodations, he receives nothing from his father’s estate halachically neither as an automatic heir nor as the receiver of gifts through his father’s will. Thus, Yonasan cannot make a financial claim against his stepmother for his father’s estate since it does not halachically belong to him. If the will is valid, then the property belongs to Martha, his stepmother. If the will is invalid, the property belongs to Uncle Jack.
Why Uncle Jack?
If a man dies without biological children and makes no halachic provisions for his estate, then his closest heir is his father, who in this case is already deceased. The next closest relative is any surviving brother. In this case, there is one biological brother of the deceased, Uncle Jack. Thus, he is the halachic heir of Yonasan’s father, and if indeed the will is halachically invalid, the property halachically belongs to him, although he may not be able to collect it.
Halachically, a woman does not inherit from her husband as next of kin. Instead the Torah gives her the rights of the kesubah, provides that she may live in her late husband’s house and guarantees her income and support from his property. Martha is entitled to these financial rights if she was halachically married to Yonasan’s father even though the marriage was prohibited. (One method whereby Martha and Yonasan’s father could have been halachically married in a prohibited marriage would be if they had deceived an Orthodox rabbi to perform their ceremony. There are others.) Thus if Martha proves that she was halachically married to Yonasan’s father she would be entitled to this support even though she was a divorcee and he a kohen (Mishnah Kesubos 100b).
II. IS THE WILL VALID?
According to civil law, a person has the right to choose one’s heirs and thereby to choose to whom one distributes one’s earthly wealth after one passes on. However according to the Torah, a person does not have the ability to choose one’s heirs, nor can one give away property after one’s death. When a man dies, the Torah instructs us how to distribute his assets, which are the laws of yerusha.
How can someone leave his property to his adopted child?
There are methods whereby one can transfer his property to his adopted child, or to anyone else for that matter, who is not a halachic heir. One method is to draw up a will and then make a kinyan that transfers possession of the bequeathed property to the beneficiary of the will. (I mention this method as an illustration since it does not work in all situations.) Some poskim, albeit a minority, contend that a legally valid will alone constitutes a kinyan. These authorities reason that someone who executed a document knowing that the government will transfer his property as a result is halachically equivalent to making a kinyan (Shu’t Igros Moshe, Even HaEzer 1:104). However, most poskim maintain that a standard civil will is not halachically valid. Furthermore, even the minority opinion quoted above would probably not accept the halachic legitimacy of a will that one may overturn.
Yonasan’s father was not observant and did not have his lawyer make the will halachically valid. (Unfortunately, many observant Jews do not attend to this important matter either. Just as it is important for a person to have a will drawn, it is important to make sure that it is halachically valid.) Therefore, most, and possibly all, poskim would consider Uncle Jack to be the halachic heir of the estate, yet he cannot file a civil suit concerning the property since he is not an interested party according to civil law. But before we even get to this step in the discussion, we need to discuss whether the Torah permits Yonasan or Uncle Jack to sue in civil court.
III. ARKA’OS -
The prohibition against filing a suit in secular court.
A Jew may not litigate against a fellow Jew in civil court (Gemara Gittin 88b), even if both parties agree (Ramban, beginning of Parshas Mishpatim). This is known as the prohibition against using arka’os. Someone who uses court systems not sanctioned by the Torah performs a chillul Hashem, a desecration of G-d’s name, because he demonstrates that he feels that G-d’s Torah cannot resolve his financial matters (Midrash Tanchuma, Mishpatim #3). In the words of the Rambam (Hilchos Sanhedrin 26:7), "Whoever has his case judged by non-Jewish laws or courts, even if their laws are the same (as the Torah), is a rosho. It is as if he blasphemed and raised his hand against the Torah of Moshe Rabbeinu." (See also Rashi’s comments on Shmos 21:1.) Someone who brought litigation in a secular court is invalidated from being a chazzan for Yomim Norayim (Mishnah Berurah 53:82). In addition, he will probably transgress the violation of stealing (gezel) since the property he receives is not his according to halacha.
What if the Other Party Refuses to Go to Beis Din?
This problem is unfortunately neither uncommon nor recent, and apparently occurred even at the time of the Gemara (see Bava Kamma 92b, as explained by Rosh). If this happens, the halachically correct procedure is for the plaintiff to have beis din summon the defendant. If the defendant fails to appear in beis din or indicates that he will not appear, the beis din authorizes the plaintiff to sue in civil court (Shulchan Aruch, Choshen Mishpat 26:2). Under these circumstances, the plaintiff has not violated the prohibition of going to arka’os since he acted according to halacha.
(It should be noted that even if someone is authorized to sue in civil court, he is only entitled to receive what halacha entitles him. It could happen that the civil court awards him more money than he is entitled to according to halacha. Therefore, he should ask a posek after winning the litigation how much of the award he may keep.)
Applying these rules to our case means that Uncle Jack may file a suit in beis din against Martha. Although Uncle Jack would like Yonasan to sue in civil courts, Yonasan may not sue according to halacha for two different reasons:
(1) One may not sue in civil court without permission from beis din.
(2) Yonasan has no halachic grounds to claim his adopted father’s estate since he is halachically not an heir.
Does this mean that this is the end of the case?
No. Yonasan explained to Uncle Jack the halachic background to the shaylah. Uncle Jack feels strongly that Martha took unfair advantage of his ill brother, which is the reason why he and his attorney feel that the will can be easily overturned in civil court. Uncle Jack then asked Yonasan if there is any way that Yonasan may proceed with the claim.
Enter harsha’ah into the picture, which is the halachic equivalent of a power of attorney. A harsha’ah allows someone who is not an interested party to litigation to sue as if he is an interested party. In this instance, Uncle Jack, as the halachic heir, can authorize Yonasan by means of a harsha’ah to sue Martha in beis din. If Martha ignores the summons or indicates that she will not respond to it, the beis din authorizes Yonasan and Uncle Jack to pursue the matter in civil court. The court will not accept Uncle Jack as a plaintiff against the will since they do not recognize him as the heir. Although the court does not recognize Uncle Jack’s claim, Yonasan may now sue in civil court based on the beis din’s authorization. Halachically, the basis of the civil suit is to save Uncle Jack the money that is his, even though neither the civil court nor Uncle Jack himself accepts that the money is his.
At this point in the discussion, Yonasan e-mailed me a further question:
"Dear Rav Kaganoff,
"In the event that my uncle does choose, with permission from a beis din, to sue my father's widow in civil court, I *should* or merely *may* act on his behalf."
Indeed this is a difficult question. In general, saving someone’s money is a mitzvah and therefore if someone sued in beis din and was ignored, it is a mitzvah to help him save his money in civil court if this approach was properly authorized by beis din. This act of chesed is included under the mitzvah of hashavas aveidah, returning a lost object to its proper owner.
In our instance, I was less certain if this is considered hashavas aveidah since Uncle Jack does not consider the money his and is only planning to give it to Yonasan. Is Yonasan required to assist in helping Uncle Jack claim the money, knowing that Uncle Jack will probably assume that it is Yonasan’s and give it to him? Furthermore, since there might be poskim who feel that the money is legitimately Martha’s, one could certainly rely on their opinions to rule that it is not a requirement for him to be involved in the litigation. Thus there are two different considerations why he may not be considered "saving someone’s money":
(1) Can you say that he is saving someone else’s money when that person intends to give it to him?
(2) According to some opinions, the money may not be Uncle Jack’s, but Martha’s. Although he is permitted to follow the majority opinion that the money is Uncle Jack’s, is he required to?
At this point in the discussion, I introduced a new topic to Yonasan, that of the mitzvah of chalitzah. This requires some explanation. If a man dies without having biological children, there is a mitzvah for his brother to perform a procedure called chalitzah which permits the widow to remarry. The chalitzah is a tremendous tikun neshamah for the departed. The mitzvah applies even if the widow is no longer of child-bearing age and even if the couple married after she was beyond child-bearing age.
Many people do not realize that if a couple has adopted children, but no biological children, that the mitzvah of chalitzah still applies. Since Yonasan’s father had no biological children, his widow (assuming that they were halachically married, as she claims) is a yevamah, who requires chalitzah from Yonasan’s uncle to permit her to remarry.
I quote my letter to Yonasan:
"If your father’s marriage to his last wife was halachically valid then there is a requirement/mitzvah for your uncle to perform chalitzah (Mishnah Yevamos 20a) even if your father’s widow has no intention of remarrying and is not observant."
"I'm surprised it didn't occur to me. Question, though -- even if they did get married with chuppah and kiddushin, she was a grusha, and he a kohen, so it was probably b'issur. He claimed to have asked a rabbi who permitted the marriage on the basis that since he was disabled, he would not be allowed to perform the avodah even if the Beis HaMikdash was standing. I did not think this is correct (indeed it is not), but I didn't see any point in making an issue of it. Was he right? Assuming that his marriage was halachically unacceptable, would that in any way impact on chalitzah? (For whatever difference it makes, his brother is also, of course, a kohen.)
To which I replied:
"There is absolutely no halachic basis to any of the reasons he told you to permit this marriage. I presume that he mentioned these reasons to relieve his own conscience and that he never asked a shaylah, but halachically he was prohibited to marry a divorcee.
"A halacha-abiding rabbi would not perform such a ceremony, unless he was unaware either that your father was a kohen or that his wife was a grusha. However, even if there was no proper halacha ceremony, they might have been considered married according to halacha, particularly since they considered themselves married. Thus, although this marriage was forbidden, there may be a requirement to perform chalitzah. The mitzvah of chalitzah applies even in the case of a kohen who marries a divorcee (Mishnah Yevamos 20a). Is there anyone where they live knowledgeable enough to arrange this for them?"
Yonasan responded to my inquiry:
"There are some very prominent talmidei chachomim living near where both my uncle and my stepmother live. However, they live a considerable distance from one another. I doubt that the widow is aware of the need for a chalitzah; I also doubt that she'll object to it if it's made easy for her. My uncle is however totally irreligious. How would I get him to agree to it and to travel the distance involved? He is unlikely to drop everything and fly to where she is to perform what he would see as an unimportant religious ceremony to help out a woman that he's upset with. What if he were to appoint someone else as a shaliach over the phone? Would that be acceptable?"
To which I responded,
"Unfortunately, chalitzah cannot be performed through shlichus (agency). It sounds like the most likely way for this to happen is to wait until a time that you know that they will both be near one another - and then plan carefully how to present it to them. Alternatively, simply to mention to them as a big tikun neshamah for your father, whom they both liked (I presume), and that if they can keep it in mind for their future travel plans.
By the way, the mitzvah is your uncle's mitzvah to perform, not hers."
As of this writing, I do not know if Yonasan decided to proceed with the litigation over the will, and I presume that no action has resulted concerning the chalitzah. However, this situation allows us the opportunity to discuss halachos with which many people are unfamiliar and it provides a tremendous opportunity to make people aware of several different mitzvos.
It is important to realize that legal rights and responsibilities are never governed by secular law. A Torah Jew realizes that Hashem’s Torah is all-encompassing, and that halacha directs every aspect of one’s life. Thus halacha governs all financial aspects of our lives, and one should be careful to ask shaylos about one’s business dealings.
Indeed through this entire halachic conversation, I was exceedingly impressed by Yonasan’s ability not to be swayed by the financial circumstances but to be certain that what he did would be the perfectly correct halacha approach. In fact, he was shortly thereafter awarded a tremendous financial windfall - no doubt for his adherence to halacha despite whatever financial temptation existed.
This Shiur is published also at Rabbi Kaganof's site