I love this post from Gerry Beyers’ Wills, Trust and Estates Prof Blog:

Testamentary gift conditioned on method of body disposition.

It reminds me of the Jewish Halachic Will which utilizes exactly the same methodology: the testator getting his way by using his will to impose a legally enforceable severe financial penalty for not following his wishes.

Background:  The primary scriptural sources for the laws of inheritance will be found in the Books of Numbers and Deuteronomy (Parshas Pinchas (Numbers 27, 1-11) and Zelophehad’s daughters). The second census of the population of the individual tribes took place just before entering the Land of Canaan (see Numbers, Chapter 26), and portions of the Promised Land were to be allocated, by lot, to each tribe in accordance with their population.

The tribes of Reuben and Gad were permitted to "inherit" and settle the land East of the Jordan River due to their great "multitude of cattle" (see Chapter 32). Each sub-tribal "family" was to be given a specific portion of land for a perpetual inheritance. In this context, the collective "petition" presented by the daughters of Zelophehad resulted in the promulgation of specific statutes comprising the earliest inheritance law in the Bible.

Maimonides, Mishneh Torah, 13th book, the Book of Civil Law (Sefer Mishpatim) contains five treatises, the fifth of which is entitled "Laws Concerning Inheritance.

The order of inheritance is as follows (taken from The Code of Maimonides, Book Thirteen, The Book of Civil Laws, translated from the Hebrew by Jacob J. Rabinowitz, New Haven: Yale University Press 1949. The Order of Inheritance is stated in Treatise Five: Inheritance, Chapter I, p. 259 – 260.):

1.      If a person died, his children shall inherit him, and they are prior to everyone else, and males are prior to female.

2.    A female never shares in the inheritance with a male. If the decedent left no children, his father shall inherit him; but by a rule derived from Tradition a mother does not inherit her children.

3.     Whosoever is prior in the order of inheritance, his issue is also prior. Therefore, if a person, whether a man or woman, die leaving a son, the son shall inherit everything. If there be no son living, we look to the son’s issue. If there be a son’s issue, whether male or female, even a son’s daughter’s daughter’s daughter, to the end of time, they shall inherit everything. If there be no son’s issue, we resort to the daughter. If there be no daughter living we look to the daughter’s issue. If there be a daughter’s issue, whether male or female, to the end of time, such issue shall inherit everything. If there be no daughter’s issue, the inheritance resorts to the decedents father. If the father is not living, we look to the father’s issue, that is to the decedent’s brothers. If there be a brother of the decedent or a brother’s issue, he, or they, shall inherit everything. If there be no issue of a brother or of a sister, seeing that there is no issue of the decedent’s father, the inheritance resorts to the father’s father. If the father’s father is not living, we look to the issue of the father’s father, that is to the decedent’s father’s brothers. The males are prior to the females and the issue of the males are also prior to the females, just as in the case of the issue of the decedent himself. If there be no brothers of the decedent’s father no issue of such brothers, the inheritance shall resort to the father’s father’s father. And in this manner the inheritance continues to ascend up to Reuben. {Query: why Reuven?] . . . ."

4.    The first-born takes a double portion in his father’s property. For it is written To give him a double portion (Deut. 21:17).

5.     " . . . . The daughters right to maintenance is one of the rights of the ketubbah. When the amount of property left the father is large, the daughters are entitled to their maintenance and the sons inherit everything, except that the daughters are to be endowed with one tenth of the value of the property each, in order to enable them to wed. When the amount of the property is small the sons take nothing and everything goes for the maintenance of the daughters.

6.     One may not constitute as an heir him whom the Law does not constitute as his heir; nor may one remove the inheritance from an heir – although this is a matter pecuniary – because in the division of Scripture treating of inheritances it is said And it shall be unto the children of Israel a statute of judgement (Num 27:11), that is to say: this Law is not subject to change and a condition qualifying it is not valid. Whether the decedent gave his instructions while he was in heath or while he was lying sick, whether orally or in writing, they are not valid.

7.     All this applies only if he uttered his words in the language of inheritance, but if he gave by way of gift, his words shall stand. Therefore, if one divided his property among his sons by word of his mouth while he was lying sick, giving more to one and less to another, or giving to the first-born a share equal to that of the other brother, his words shall stand. But if he utters his words in the language of inheritance, they are of no effect

It has been clear since talmudic times that Jews have wished to deviate from this stated succession wish to will assets to wives, daughters, charities and friends. Today, the influences of secular culture on the Jewish community and the modern idea of private property and individual rights has made this more common.

This is one of the ways for a testator to comply with halacha and yet distribute his estate the way he wants:

In a technique commonly referred to as a "Halachic Will." the testator creates an indebtedness in favor of those he wishes to benefit, e.g., wife and daughters, by executing a promissory note in their favor. Under halacha, this note is valid even if no loan was given. A debt for a huge sum, well in excess of the total value of the estate is created, but does not mature and is not payable until one hour before death. The huge sum is not going to be paid, but will be used as leverage for carrying out the terms of the will. The note, by its terms, gives to the halachic heirs (the sons) the option of paying the debt or receiving a stated legacy in lieu of having to discharge the debt. The legacy is the amount willed to the chosen beneficiary who holds the note.  Thus, the halachic heirs chose to be beneficiaries under the will which deviates from the Jewish law of inheritance.