The Israeli judge suggested deciding our estate dispute under Section 79A without hearing evidence. Should we agree?

Somewhere around the second pre-trial hearing, an Israeli judge will often put down the file and ask whether the parties would agree to a decision under Section 79A. For a London family two years into a fight over a Jerusalem flat, that question is worth more than most of the arguments in the file. Section 79A of the Courts Law [Consolidated Version] 5744-1984 lets the judge decide the whole case by way of compromise, on the papers, without hearing witnesses. It ends the case in weeks rather than years, and it very nearly ends the right of appeal with it.

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Detailed Answer

Consent is the whole mechanism. The court cannot impose Section 79A, and both sides must agree in writing before the judge switches tracks. What follows is not mediation and not a settlement between the parties: it is a binding judgment, given by the judge, but reached by weighing the material rather than by trying the case. There is no cross-examination, and the judge is not obliged to give full reasons, which is precisely why the Supreme Court will intervene only in narrow circumstances such as a decision outside the agreed framework or a plain procedural defect. Experienced Israeli practitioners rarely give bare consent. They agree a floor and a ceiling first, so that the judge may award the claimant no less than one figure and no more than another, which converts an open risk into a defined range. Where the dispute is about the size of a share rather than the existence of a right, that range is usually the difference between a sensible gamble and an unnecessary one.

Living abroad tilts the calculation towards saying yes, and for reasons that have nothing to do with the merits. A contested Israeli estate file consumes court fees at 2.5% of the value in dispute, an expert opinion or two, translations of every foreign document, and years of hearings that a foreign party either attends at real expense or does not attend at all. Section 79A collapses that into written submissions and the documents already filed. It also removes the evidential disadvantage that heirs abroad carry: witnesses to a family's affairs are usually in Israel, on the other side of the dispute, and cross-examination is the stage at which a foreign claimant is weakest. Where the file is strong on paper and thin on live testimony, that trade is a good one. Our answer on the mandatory MAHUT mediation meeting covers the earlier off-ramp that many families should take before this one arises.

In Practice: Section 79A of the Courts Law [Consolidated Version] 5744-1984 permits the court, with the consent of the parties, to decide the matter by way of compromise, on the file, without full reasons and without cross-examination, and the resulting judgment is close to unappealable. In an estate dispute the parties commonly record an agreed floor and ceiling, for example NIS 250,000 to NIS 600,000 on a contested share, before consent is given. The Family Court normally delivers the decision within six to twelve weeks of the final written submissions, against the two to four years a fully tried objection takes, and under Regulation 15 of the Courts Regulations (Fees) 5767-2007 part of the court fee is refundable where the case ends in compromise early enough.

When to Consult a Lawyer

• The case turns on what someone said to the deceased in a room with no other witnesses, because Section 79A removes the cross-examination that is your only real tool against that account.
• You are asked to consent without a floor and a ceiling, which hands the judge an unbounded discretion in a matter you will not be able to appeal.
• One side has already filed an expert opinion and the other has not, since under Section 79A the judge decides on the material in the file and the gap will not be repaired at a hearing.

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Speak With an Israeli Attorney

We advise on whether a Section 79A decision serves your position, negotiate the floor and ceiling before consent is given, and prepare the written case so the judge decides on a file built for this route rather than for a trial that will not happen.

Contact us for a confidential initial consultation.