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The Testamentary Trust - Chapter 9 - Trusts and Estate Planning in Israel - Second Edition
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This chapter is from Trusts and Estate Planning in Israel, Second Edition
PAGE PREVIEW As explained in Chapter 6, a trust may be established under a written will - constituting a testamentary endowment - pursuant to section 17(a)(2) of the Trust Law. This chapter explores the testamentary endowment in more depth. 9.1. A TESTAMENTARY TTRUST: A MMATTER OF IINTERPRETATION Section 17(a) of the Trust Law defines a testamentary trust (endowment) as provisions within a valid will in which the testator expresses their intention to create a trust and sets out its purposes, assets, and terms. From this definition, two conditions may be inferred: The first requires the form of a will – tThe document must satisfy the formal requirements of a valid will under the Succession Law. This doesn’t raise much difficulty, and if needed, the probate application is forwarded to the court to decide whether the will at hand is valid. The second requires the substance of a trust – tThere is no requirement that the relevant provisions be expressly labeled as a trust; rather, the arrangement described in the will must, by its nature, reflect the essential characteristics of a trust. This condition invokes an interpretive question: does the terms of the specific will create a relationship characteristic of a trust? Interestingly, although section 17(a) of the Trust Law requires the settlor- – equally in inter vivos and testamentary contexts - to express their intention to create a trust and to set out its purposes, assets, and terms, questions regarding whether this condition has been satisfied seem to arise more frequently in relation to testamentary trusts. A possible explanation lies in the primary purpose of the document being executed: in the case of an inter vivos trust, the settlor executes a trust deed before a notary, a document whose sole purpose is to establish a trust. By contrast, the creation of a testamentary trust may be supplementary or incidental to the making of a will, and not necessarily the product of a deliberate, independent legal act. In such cases, determining whether the requirements of section 17(a) have been met may prove more challenging, and not straightforward.
Dr. Alon Kaplan, Advocate & Notary, is a member of the Israel Bar and was admitted as a member of the New York and Frankfurt Bars. He is the President and founder of the Society of Trust and Estate Practitioners “STEP Israel”. Academically speaking, he has a Ph.D. from Zurich University in Switzerland and an LL.B. and LL.M. from the Hebrew University of Jerusalem. Dr. Kaplan maintains a direct and close relationship with academia, and he was a lecturer on trusts in the Academic Management College, Reichman University, and the Law Faculty of Tel Aviv University, where he taught trust courses for LL.M. students. Dr. Kaplan is a popular lecturer on trusts in Israel and abroad. He constructed the academic program for the Trusts Diploma of STEP in Israel. Throughout his professional career, he has written numerous professional articles in legal journals, on matters of trusts, intergenerational asset transfers and selected commercial law topics such as agent and distributor laws, a topic which he researched for his LL.M. thesis. Dr. Kaplan has been a regular contributor of articles to Trusts & Trustees by Oxford University Press. He has written and edited numerous professional books, among these on doing business in Israel, on trusts in Israel, and on international trusts laws. His book, Trusts and Estate Planning in Israel, is a professional and comprehensive guidebook for practitioners in this area in Israel. Another important book in English is Trusts in Prime Jurisdictions, fifth edition, 2020 which reviews trusts in various jurisdictions by 19 authors from various jurisdictions. In December 2020 he was the co-editor of the book, Life Cycle of a Family Business, published in London. Meytal Liberman, Advocate and Notary, TEP, advises private clients in Israel and internationally on trusts and estate planning. Her services include legal structuring for the long-term holding, ownership, and management of assets, addressing legal incapacity, division of marital property, wills, and trusts. She has practiced in this field since 2012, combining legal work, academic study, and active participation in professional organizations, publications, lectures, and continuing legal education.
Ms. Liberman was admitted to the Israel Bar in 2013 and licensed as a notary in 2024. She holds an LL.B. from Bar Ilan University (2012) and an LL.M. in Commercial Law from Tel Aviv University (2015). She is a full member of STEP, having earned a Diploma in International Trust Management following two years of study. Since 2018, she has been authorized by the Administrator General and the Israel Bar Association to draft and execute legal instruments for future incapacity planning, including the Enduring Power of Attorney, Expression of Wishes Document, and Preliminary Instructions for the Appointment of a Guardian. Her writing includes chapters in Asia-Pacific Trusts Law, Volume 2 (Bloomsbury, 2022), Trusts in Prime Jurisdictions (5th ed., Globe Law and Business, 2019), and Trust in Israel: Theory and Practice (2017, in Hebrew). Her work has also appeared in Trusts & Trustees, The International Family Office Journal, and STEP Journal. She lectures regularly at seminars and conferences, including events hosted by the Israel Bar Association and STEP.
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