The Jewish Ethicist: Second-to-Last Will and Testament
Judaism's approach to fulfilling last wishes.
Q. Am I obligated to fulfill a parent's last wishes?
A. Last week's column discussed the ethical considerations of taking in a dog of a departed friend. There we discussed one dimension of the problem -- the ethical status of pets. But a number of readers wanted information about an additional dimension -- Judaism's approach to fulfilling last wishes.
Jewish tradition contains a wealth of sources on this topic. We can start of course with the Bible. Already in the book of Genesis, we find the patriarch Jacob instructing his 12 sons on his deathbed. His oration is part prophecy and part instruction, sometimes overlapping. Jacob foresees to a great extent how the 12 tribes will settle the land of Israel. He foresees that the tribes of Simon and Levi will be divided, that the ruler of the people will come from the tribe of Judah, that Zebulun will dwell by the sea, and so on. (Genesis, chapter 49.) Jacob's vision was fulfilled when the Jewish people entered the Promised Land, hundreds of years after his death.
We also find that when "the days of David drew near to death," he instructed his son, King Solomon, how to rule the kingdom of Israel, particularly in the interim period at the beginning of his reign. (I Kings, chapter 2.)
In Jewish law, there are a few different ways that parents try to make their desires known to their children. These have varying levels of obligation and scope.
At the highest level of obligation, and the narrowest scope, we have the legal principle that "it is a mitzvah to carry out the directions of the deceased." On the one hand, this is a binding legal principle; on the other hand, it is limited to disposing of the person's tangible assets in accordance with his or her desires. This is a kind of trust which in effect is the Jewish law equivalent for the secular law's "last will and testament". (1) A closely related case is where a parent gives directions relating to burial, which are intimately tied up with the parent's personal dignity. (2) These instructions too are considered obligatory.
However, a number of authorities have written that even if the directions of the parents are only enforceable within this narrow scope, they should be considered to have moral force in other cases as well, as long as they were intended for the benefit of the child. Rabbi Shimon Duran was asked about a father who, before his death, instructed his son not to cut off relations with the son's brother in law. Rabbi Duran replies that while there is no obligation, the son certainly fulfills a mitzvah by heeding his father's words. He cites as an example the Scriptural example of Yonadav ben Rechev, who instructed his offspring to refrain from drinking wine. The prophet Jeremiah praises the children for being loyal to their father's wish. (Jeremiah 35:6-8.) (3)
Rabbi Yaakov Reischer discusses the case of a mother who obtained her sons' agreement that they would resolve future disputes among them by turning to a particular arbiter. Rabbi Reischer writes that the sons can not be compelled to fulfill their mother's wishes, but they should be instructed to do so. (4)
The most developed form of this kind of exhortation is the so-called "ethical will" which has been widespread in Jewish communities for many centuries. One of the most famous is the ethical will of Rabbi Yehuda HaChasid of Regensburg, a 12th century European authority. Another is that of 18th century Rabbi Elijah of Vilna.
I do not know of any example in Judaism sanctioning an interventionist parental "dead hand", where the child is limited in his or her own life choices to the parent's desires even when these are not intended for the benefit of the child. Even the very grave commandment of honoring parents, which is one of the ten commandments, does not empower parents to intervene in the private choices of the child, for example by limiting the choice of spouse.(5) Certainly such instructions would not have any more force after the parent dies.
To sum up, we find two different ways in which the parent's last wishes should impact future generations. When the departed person gives instructions as to how to dispose of his or her assets, and takes appropriate legal steps to give force to these instructions, then the will must be carried out. Likewise, choices regarding burial practices and the like which are a basic prerogative of any dying person, need to be respected.
Independently, a parent often has valuable instructions and life lessons to transmit to the child. When these are in the form of an end-of-life instruction to the children, or of an ethical will, and intended for the well-being of the offspring, our tradition gives these instructions great weight. These exhortations are not enforceable, but we consider them to have a very valuable role to play in the transmission of compassion and wisdom from one generation to the next.
SOURCES: (1) Shulchan Arukh Choshen Mishpat 250 (2) See Mishnah Berurah 526:22. (3) Responsa Tashbetz II:53 (4) Responsa Shvut Yaakov I:168 (5) Shulchan Arukh Yoreh Deah 240
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