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Before dying, a sick man left the following will: "... I hereby command and transfer all of my property including money in bank accounts and future rights ... I give from today and one moment before my death to Yeshiva X." The natural inheritors questioned the will’s validity.
Ruling: Given the document’s wording and the fact that the deceased was sick at the time it was drafted, are we dealing with a matnat sh’chiv merah (a gift of one in mortal danger), which is valid without a kinyan? The language of "from today and one moment before death" indicates a conventional transfer of property, as a matnat sh’chiv merah takes place only after death.
Since the document was written in the accepted manner of wills, it should work as a kinyan situmta (a transfer based on the norms of society). However, situmata cannot transfer money in a bank account. That is because it is like a loan that is owed by people to the one who transfers his rights, upon which situmta does not work. This can be proven from a comparison to ma’amad shloshtan (the oral transfer of A’s property in the hands of B to C in the presence of all three parties). The Rashbam (Bava Batra 148a) says that ma’amad shloshtan was accepted practice among merchants, which the Rabbis instituted as a kinyan so that it would apply even when the rights transferred are in the form of a loan. Thus, without the special rabbinic institution, accepted practice (situmta) does not work in regard to loans.
One might claim that Israeli bank deposits are different, as, due to the heter iska, half of the deposited money is a pikadon (money that is to remain in the depositor’s possession). Situmta should work for at least that part. A firstborn does not receive a double portion regarding potential possessions such as a loan. There is a machloket whether a heter iska’s pikadon portion is considered actual or potential possessions (consider that in practice different physical money is withdrawn than was deposited) (see Pitchei Teshuva, CM 278:4). The same machloket determines whether situmta works for that portion of a bank deposit.
The gemara (Rosh Hashana 6a) says that one can become obligated in tzedaka orally. However, the deceased’s obligation to the yeshiva will not work because the money was only in the form of a loan due to him (Shulchan Aruch, Yoreh Deah 258:8).
Although the gift to the yeshiva does not work as a kinyan, the Achiezer (III, 34) says that it does work as an obligation of the inheritors to fulfill the deceased’s obligation (mitzva l’kayem divrei hamet). The normal requirement that the deceased give the money to a third party for safekeeping does not apply when the deceased obligated himself as a vow to do a mitzva. Therefore, the yeshiva should receive the funds as instructed in the will.
P'ninat Mishpat (829)
Rabbi Yosef Goldberg
1 - A Man Who Died Without Known Inheritors
2 - A Will To Bequeath Bank Accounts
3 - A Will That Was Not Publicized
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