When a Will must not be Respected
When a Will is “kosher” but Illegal

The Supreme Court decision as “Bagat’s” בג"ץ 6167/09

Given November 18th 2009 by unanimity and written by the honorable Mr. Eliakim Rubinshtein

The request from the petitioner:

Mr. Doe (although the real names can be found when reading the court decision on the internet, I have chosen to use a fictitious name, as a rule in all of my articles), the petitioner, asked the court not to be buried after his death, but that his body will be used to feed animals. He wrote his request in his will and asked the Minister of Justice to accept the will, but his request was denied on the basis that his request is against the Laws of Israel. Therefore the case came before the Supreme Court.

Mr. Doe claims that every man was meant to live as part of the circle of life, therefore when one dies he must provide for those who are alive, in this case, the animals.

The Answer of the State:

The State is against Mr. Doe’s request claiming that this specific request is against the interests of the public, who cannot abide that a deceased body will be left in a public domain or even in a specific domain to be used as food for animals. In the State’s opinion this is against the dignity of the human being and will most likely cause environmental pollution.

The Decision:

There is no possibility to agree to Mr. Doe’s request. This specific request, as opposed to one’s request to donate organs to science, is against the public interest and human dignity. Even if Mr. Doe waives his right to his individual dignity after his death, he cannot impose this indignity on others. If a request such as this will become a common occurrence, how would society and the environment look, as the Prophet Jeremiah said in Ch.9, verse 21: "For death is come up into our windows, and is entered into our palaces, to cut off the children from without, and the young men from the streets."

On the Israeli legal basis, “K’vod Ha’Adam”, it is not only the dead and his will, but those still alive.

As for the request itself, even if we want to waive Mr. Doe’s honor and dignity, we can never know how his family will be affected by his decision. This could negatively affect the family.

In Jewish Halachic Law, burial is a positive obligation. According to the Rambam, even the request of a poor person not to be buried because he has no means (or the family) must be ignored. This is the general opinion of many other scholars.

Summary of the Decision:

The Court decided not to accept Mr. Doe’s request, therefore his will is null and void and the Court wishes him a long life.

My Personal Observation:

We have to remember that our honor is not a given. Our honor comes with limitations and obligations, some of them by law and some by general common sense.

When writing a will, one must use common sense and remember that he does not live alone but is a member of the global community. As Jews, we are more of a closed community, ruled by thousands of years of Jewish tradition. This tradition has a special connection to death and burial. The only mitzvah, called “Chesed Shel Emet” is to participate in a funeral and help bury the dead. Why is that? We know in advance the dead person will never be able to return a good deed to us.

Fortunately for Mr. Doe, he asked for this request while he was still alive and his will could still be rewritten according the law and his general wishes could still be respected if he rewrites his will without this one specific request. This could not be the case if the petitioner dies and in his will there is any request that goes against the public interest or any law.

Sincerely,
 

Tzvi Szajnbrum, Attorney at Law