Rav Yitzchak Grossman Question: If a parent did not write a will but they intentionally…
Rav Yitzchak Grossman
Question: May a parent favor one son over the other sons in his will?
Answer: The Gemara says that one should not do that.
The Gemara says that one should not make distinctions between one son and another. We learn that from the story of Yosef. It says that Yaakov favored Yosef by giving him “some extra wool” i.e. the kesones pasim, which it says was not even worth a large amount. This led to disharmony and jealousy, and eventually led to Yaakov and his sons going down to Mitzrayim as a result. We thus see that a father should not favor one son.
There are Poskim who say that this applies only during a father’s lifetime, as in the story of Yaakov and Yosef. [It is interesting that when it comes to the prohibition of havaras nachalah, it is forbidden to disinherit a son after death, and there is a machlokes whether or not this applies also to gifts given during the father’s lifetime, but here we see the opposite – that some Poskim say the concern of jealousy amongst brothers only applies during the father’s lifetime and not at the time of death.] Other Poskim disagree and say that even in a will, a father should not distinguish between his sons.
Question: Would there be any difference if there was a special reason behind the father’s desire to divide the yerusha unevenly? For example, what if one child took care of his parents devotedly for years and they want to recognize that in their will?
Answer: That may be okay. In the sefer Yefei To’ar, Rav Shmuel Yaffa asks an interesting question. It says in Parshas Vayechi that Yaakov told Yosef that he was giving him one extra portion over his brothers. He asks how he could show favoritism to Yosef again after all of the problems this previously caused.
He brings several answers. One answer is that since Yosef was now a king, the brothers would not be jealous of him. Another answer is that Yosef was going to the effort of burying Yaakov, the extra portion was in exchange for that service. So, we see that it can be argued that if a father gives one child something extra in his will in exchange for a service provided by that child, it would not be a problem.
We also mentioned previously in regards to the prohibition of havaras nachalah, that some Poskim say that if it is done in exchange for favors that somebody did, it is not called disinheriting; rather, it is considered to be a form of paying back for the favors. This is a similar reasoning as to why this is permissible.