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Summary Parasha & Halacha Shiur for Parashat VaYehi
By Dayan Dovid Grossman shlit”a, Rosh Bet HaVaad
The Ramban and R’ ‘Ibn Shou’ib write (as does the Midrash) that we learn from Yaakov’s actions in our Parasha that there is an obligation to uphold the will of the deceased – מצוה לקיים דברי המת. The Maharsham (ח”ב סי’ קכ”ד) writes that we see that it is a Torah-level obligation.
When people write up a last will and testament they may often not consult with a Halachic authority, and is invalid (i.e. if one writes that his wife will inherit his estate). One must draft a carefully crafted and Halachically valid “Halachic Will”. However, some Poskim maintain that a civil will would still be respected after the fact, as this was the deceased’s will.
The nature of this obligation
There is a debate among the Poskim:
a. The Tashbatz understands that the fulfillment of the deceased’s wishes is a form of bequeathing (a Yerusha), a power that Hachamim give him.
b. The Ramban (ibid.) understands it is a Torah obligation.
c. The Sho’el U’Meshiv asks how we see from Yaakov that all people have to fulfill the deceased’s wishes, maybe only children have to fulfill Kibbud Av Va’Em? Furthermore, we cannot derive Halachot from what happened before Mattan Torah? Additionally, he asks, the opinion of Rabbenu Tam is that only money that is in escrow is subject to the rule of Mitzvah L’Kayem Divre HaMet – that the deceased’s directive must be respected. The Poskim follow Rabbenu Tam, how then can they derive this Halacha from Yaakov where there were no assets in escrow? The Sho’el U’Meshiv concludes that it must be only rabbinic, as a kindness with the deceased – Gemilut Hassadim.
d. The Simhat Yom Tov (Mahari”t Elgazi) writes that it is to give peace of mind to someone who is on his deathbed (just as whatever a deathly-ill person is halachically binding, without a Kinyan).
A case of non-monetary directives or respecting the wishes of a deceased by non-children or non-heirs would seem to depend on these opinions.
The Shevut Yaakov
The Shevut Yaakov discusses a directive of a woman who passed away who that any dispute must be adjudicated in a specific Bet Din. He concludes that although there is no real obligation in non-monetary issues, since it is a parent one should comply- לפנים משורת הדין – beyond the letter of the law. However, he proves from the Bet Yosef and Shulhan Aruch in a few places that there are two levels of obligation: fulfilling the will of the deceased with regards to assets in escrow, in which case Bet Din can exert their executive powers, and the obligation to do anything in one’s ability to fulfill the deceased’s wishes – even in other matters. This however cannot be enforced by the Bet Din.