Do I have to fly to Israel to give evidence in my family's inheritance case?

An 84-year-old in Florida is the only person alive who heard what her brother said about the Jerusalem apartment in 1998. Her evidence decides the case. Her cardiologist will not clear a fourteen-hour flight. Israeli procedure has a route for exactly this situation, and it is narrower than most foreign lawyers assume.

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Detailed Answer

Regulation 72 of the Civil Procedure Regulations 5779-2018 gives the court a discretion to allow evidence to be heard by visual conferencing, expressly whether the witness is within the territory of the State of Israel or outside it, on directions the court sets. Three conditions have to be satisfied together. First, that attending the court hearing the claim would be very difficult for the witness, and that the witness has consented to giving evidence this way. Second, that the evidence is essential to the questions in dispute. Third, that there is no impediment from the point of view of the foreign state to evidence being taken within its territory. Sub-regulation (b) then adds the physical requirements, which are more demanding than a laptop on a kitchen table: equipment allowing the witness to see and hear what happens in the courtroom where the court finds that necessary, a camera capable of a close-up of documents, a central screen in the courtroom and a personal screen for the judge. These rules govern Family Court proceedings as well, which is where contested succession files land once the Inheritance Registrar transfers them.

The condition families underestimate is the third. Taking evidence on another country's soil is treated by a number of states as an exercise of sovereign authority that needs their permission, routed through the Legal Assistance Between States Law 5758-1998 and the diplomatic channel, and that request is measured in months rather than weeks. Raise it at the pre-trial conference, not on the morning of the hearing. The first condition also rewards specificity: "very difficult" is not the same as inconvenient, and what persuades a judge is a medical letter, a caring responsibility, or a plain arithmetic comparison between the cost of the trip and the value of the claim, rather than a general statement that the witness lives abroad. Two mechanical points then matter for a non-resident. The affidavit of evidence-in-chief is filed in Hebrew, so a statement drafted in English needs a notarial translation at the fixed tariff of NIS 251 for the first 100 words and NIS 197 for each additional 100. And the signature has to be taken properly, which means before an Israeli consular officer exercising notarial powers under Section 50(a) of the Notaries Law 1976, or before a local notary with an apostille attached. Cross-examination then happens at Israeli court hours, so a nine o'clock listing in Jerusalem is two in the morning in Los Angeles, and judges are unsympathetic to a witness who is visibly exhausted. Note separately that a foreign claimant may be ordered to put up a deposit before the case proceeds at all, which we cover in our answer on security for costs against a foreign claimant in an Israeli court.

In Practice: Regulation 72 of the Civil Procedure Regulations 5779-2018 permits evidence by visual conferencing from outside Israel on three cumulative conditions, with the equipment requirements in sub-regulation (b) including a central screen in the courtroom and a personal screen for the judge. Where the foreign state's consent is needed, the request runs through the Legal Assistance Between States Law 5758-1998 and the Ministry of Justice, adding two to six months, so file the application at least 30 to 60 days before the evidentiary hearing at the Family Court. Budget NIS 251 for the first 100 words of notarial translation of the affidavit and NIS 197 for each additional 100, plus about NIS 41 for a Ministry of Foreign Affairs apostille where one is needed.

When to Consult a Lawyer

• The witness is the claimant. Courts scrutinise an application to keep a party out of the courtroom far more closely than one about a peripheral witness, and refusal usually means the claim proceeds without the evidence it was built on.
• The other side objects on credibility grounds. Where the case turns on what someone was told in a room twenty years ago, opposing counsel will argue that demeanour cannot be assessed on a screen, and the answer has to be prepared rather than improvised.
• Documents will be put to the witness. Regulation 72(b) requires a camera for close-up document work for a reason, and an exhibit bundle that has not been agreed and delivered to the remote location in advance turns a two-hour cross-examination into an adjournment.

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Speak With an Israeli Attorney

We apply under Regulation 72 early enough for the foreign-state question to be answered, prepare the affidavit and its notarial translation, and arrange a venue at your end that meets the equipment requirements the court will check.

Contact us for a confidential initial consultation.