My late husband's Israeli will left me almost nothing. Can I claim support from the estate from Australia?

Israeli law does not give a court a general power to rewrite an unfair will, which is why so many overseas spouses are told there is nothing to be done. There is a narrower right that works, and it is often overlooked. Under Chapter Four of the Succession Law 5725-1965 a surviving spouse, the deceased's children and parents he had been supporting may claim maintenance out of the estate where they need it, and that claim takes effect against the estate regardless of what the will says.

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Detailed Answer

Section 56 sets out who may claim: a spouse, children and parents who require maintenance, whether the estate passes by will or on intestacy. Section 57 defines the entitlement by category. A widow is entitled for as long as she remains a widow, though the court may award a lump sum where she remarries. Children are entitled until 18, a child with a disability or a continuing mental illness for as long as the condition lasts, and the court may extend the entitlement to 23 in appropriate circumstances. Parents qualify where the deceased was in fact supporting them, and the entitlement can run for life. Section 58 includes vocational training in the maintenance, and Section 59 lists what the court weighs: the value of the estate, what the claimant already receives under the will or on intestacy, the standard of living during the deceased's lifetime, the claimant's own assets and income, and any other maintenance rights they hold. Two further sections give the right teeth. Section 63 allows the court to bring back into account gifts the deceased made in the two years before death where the estate is otherwise too thin, and Section 65 voids both a pre-death agreement to give up maintenance and any provision in the will excluding or limiting it, while requiring court approval for a post-death settlement.

Timing is the trap for a family overseas, because the deadline is not counted in years from the death. Under Section 61 the claim must be brought before the estate is divided, and the court has a discretion to entertain it within six months of the division where the circumstances justify it. Israeli estates in which the heirs are cooperative can be distributed quickly once a succession or probate order issues, so a widow in Sydney who waits to see how matters settle can find the money gone and only the residual six-month discretion left. Jurisdiction lies with the Family Court, and the claim can be filed and run by an Israeli lawyer under a notarised and apostilled power of attorney, though the court will want a full picture of the claimant's Australian circumstances: pension entitlements, superannuation, property, and Australian income, all supported by documents and typically by a sworn affidavit. Cross-examination for a party abroad is commonly taken by video. A maintenance award does not, by itself, resolve the underlying validity of the will, and where the will is also being challenged the two proceedings are usually run together; our answer on whether an Israeli inheritance matter goes to the Inheritance Registrar or the Family Court explains which forum takes what.

In Practice: Sections 56 to 65 of the Succession Law 5725-1965 create the maintenance claim, with Section 57 defining entitlement for a spouse, children to 18 and up to 23 in appropriate cases, and dependent parents; Section 59 sets the factors, Section 63 reaches gifts made in the two years before death and Section 65 voids any waiver or restriction in the will. The claim is filed in the Family Court, and Section 61 requires it before division of the estate, with a discretion for up to six months afterwards. On an estate of NIS 4,000,000, awards to a surviving spouse commonly take the form of a capitalised lump sum in the low hundreds of thousands of shekels, and a contested claim runs 12 to 24 months.

When to Consult a Lawyer

• A succession or probate order has already issued and the heirs are moving to sell or transfer the Israeli property. The application to restrain distribution has to be made now, because after division you are relying on a discretion rather than a right.
• You signed something during the marriage giving up claims against your husband's estate. Section 65 voids a pre-death waiver of maintenance, so a document the family is relying on may be worth less than they think.
• Your Australian pension, superannuation or property is substantial. Those are precisely the facts a court weighs under Section 59, and how they are presented affects the size of the award far more than the size of the estate does.

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Speak With an Israeli Attorney

We act quickly to hold the estate before distribution, file the maintenance claim in the Family Court, and put your Australian financial position to the court in the form Israeli judges expect.

Contact us for a confidential initial consultation.