The article is part of a collaboration with Obitar
I met the three children of the late Menachem (pseudonym) and his two grandchildren, in the spirit of the times, at a Zoom meeting. The extended family lives all over the country and at the Zoom meeting it was decided that Tomer (the young grandson who lives in Tel Aviv) would be the one to keep in touch with me and represent the family in the legal process.
Menachem died a few months ago and in his will he divided his property in equal parts between his three children, Tomer and his sister (whose mother died several years ago) and Dalia (pseudonym), the girlfriend of the late Menachem. 20% for each.
“The height of her audacity, what infuriates me the most,” Tomer explains to me, “is that she does exactly the opposite of what he wanted. He gave her 20% not out of love or concern. He ordered her this part just so she wouldn’t make a mess and file objections and lawsuits. He wrote it explicitly in his will.”
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And despite this, after Menachem’s death, Dalia filed a lawsuit against the brothers and as part of it demanded half of an apartment registered in his name by virtue of the presumption of sharing. According to Dalia, the apartment that is registered in Menachem’s name and where she lived with him, is joint property in accordance with the rule of sharing. In addition, she claimed that the will was drawn up while Menachem was very ill and under the influence of the children.
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After a counterclaim was filed in which the Medalia brothers demanded that they vacate the apartment and pay them proper usage fees, Dalia filed a defense that instantly changed the whole picture.
In the statement of defense that Dalia submitted to the counterclaim, she attached two documents that were not attached to the statement of claim: a cohabitation affidavit, and a financial agreement. “But you understand, Ran,” Tomer explains to me in frustration, “even in the financial agreement, which she signed in France herself, there is property separation. The agreement itself explicitly states that the rights to the apartment belong only to grandfather, even though they live in it together. And you have to understand something else, Ran,” he continues to explain to me “You didn’t know Grandpa, but he was a great romantic. He believed in the institution of marriage. He married and divorced three times, Dahlia was really his girlfriend, but he didn’t love her and didn’t plan to share his property with her. Also the 20% he bequeathed He bequeathed to her only because he knew how greedy and egoistic she was.”
But I understood, and acted accordingly. Although Dalia for her part claimed that she was in fact deceived, she thought that she was actually regulating her position as it was known to the public and did not really agree to sign the financial agreement, I asked on behalf of the brothers to dismiss the lawsuit outright.
Section 100(1) of the Civil Procedure Regulations, 1984, authorizes the court to order the deletion of the statement of claim, when it does not show a cause of action.
The provisions of the civil procedure require the court to exercise caution before deciding on the outright deletion of a claim.
The court will exercise its authority according to this section, only when it is clear and beyond any doubt that, based on the facts he alleged, the plaintiff will not be able to obtain the relief he requested.
The rule is that the court will use its authority to strike out a claim, prior to investigation, only if it is clear that the claimant will not be able to obtain the required relief in his claim in any way. As a general rule, the court will resort to this remedy of deleting a claim in the tradition, very carefully and rarely.
And in our case, the court accepted the request and determined that already in her cross-examination, Dalia confirmed that she had signed the financial agreement. He even added that if it really was a joint apartment, it would have made sense that the apartment would have been registered in the name of the two at the time of purchase, and not only in Menachem’s name.
The court ruled that Dalia signed the financial agreement with clear knowledge, but retracted her signature and did not anticipate the existence of the agreement from the beginning, with the intention of expanding her rights beyond what Menachem commanded her, who, it turns out, did know her and her greedy nature well.
The article is courtesy of the legal portal obiter.co.il
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