When confronted with the finality of death, people often want to ensure that their life’s work, values, influence and contributions to society continue after their passing. Many issue instructions and requests of their loved ones to carry out after they die. Are the survivors required to abide by these requests? How much weight does Jewish law ascribe to the expressed wishes of the dying? Can the courts enforce the demands of the deceased if the parties are unwilling to follow through?
Considering the breadth of this subject, in this article we will focus on two general schools of thought on the matter and some related details. However, for a broader understanding, the reader is encouraged to explore this topic further in the sources referenced below.
The premise for this discussion is found in the following Talmudic teaching:
If one entrusts funds to a third party on behalf of his daughter so that a field can be purchased or a dowry can be allotted for her upon her marriage. After his demise, even if the daughter informs the third party that she would like him to entrust the money to her husband, the money must only be directed to purchase the field or provide the dowry. This is because it is a mitzvah to fulfill the requests of the deceased.
This scenario creates an ideal case study, as the father did not only make a formal request, but even entrusted money to a third party to ensure that his request be honored.
However, R. Yom Tov Alashvili (Ritva, 1250-1330) broadens the scope of this obligation. In his view, if the dying person provided instructions to his heirs or others who are in the position to fulfill his will, in their presence, and they were silent or consented to fulfill his request, they are obligated to follow through.
Basis for this position is found in another law in the Talmud: If, before dying, someone instructed his children to free his maidservant upon his death, the children are obligated to honor his wishes as it is a mitzvah to fulfill the wishes of the deceased. In this case, the Talmud does not condition her freedom on whether she had come under the jurisdiction of a third party (i.e. one of the heirs). It therefore appears that this condition is not required. Rather, so long as the instructions were expressed in the presence of people who are capable of carrying out his/her wishes, and they consent (or acquiesce through their silence), the obligation applies.
Indeed, a number of prominent poskim adopt this view in their final analysis, including R. Schneur Zalman of Liadi in his Shulchan Aruch.
If a person told his heirs that he is entrusting them with all of his property so that it should be given to so-and-so, [after he dies,] they are obligated to carry out the words of the deceased […] [However,] if he gave these instructions to others to convey to them, they are not obligated to carry out his instructions. Unless he issued these instructions in the presence [of the heirs] and they remained silent and accepted his words.
Similarly, if one merely pledged to instruct his heirs to gift (some) of his possessions to others, no mitzvah is incumbent upon the heirs to actually do so.
Monetary vs. Ordinary Matters
What are the defining parameters of this mitzvah? Are the words of the dying person honored because of their unique state: about to die?
R. Shlomo ben Tzemach Duran (Rashbatz, 1361-1444) writes:
The mitzvah to fulfill the instructions of the deceased is not without exception. For [even] during his death, a man is not a prophet nor a king or prince so that he may command the living to fulfill his words. “There is no rulership on the day of death.” The law was only stated for when he commands them to do something specific with his money. In that case, it is a mitzvah to fulfill his words, for he is the authority regarding his money.
Many authorities adopt this view, noting, that while this specific mitzvah does not apply to anything beyond one’s possessions, in some circumstances children would be obligated to carry out the wishes of the deceased in fulfillment of the commandment to honor one’s parents.
An interesting contemporary case was presented to Rabbi David Weiss (currently serving as a rav in Antwerp). Someone instructed that his possessions be given to his grandchildren, upon his death. His children claimed that since he had not entrusted his possessions to a third party, the mitzvah to fulfill his wishes did not apply. Rabbi Weiss responded that in this case, fulfilling their father’s wishes was a matter of according him honor (Although the Mitzvah of honoring one’s parents cannot be enforced by a Beit Din).
Rabbi Shmuel di Medina (1506-1580) provides a more nuanced approach when circumstances do not conform to any of the criteria outlined above. A woman passed away in the absence of her son. Before she passed, she requested that her son make sure that she is buried in the Land of Israel. Since this undertaking was fraught with danger at the time, they asked Rabbi Shmuel his opinion. He responded that the imperative to fulfill the wishes of the deceased in this case was somewhat lenient and the son could not be coerced to follow through. Nevertheless, if he does choose carry out her request, he would be fulfilling the mitzvah.
Rabbi Shmuel’s ruling provides two important principles:
- Even though the instructions were concerning something other than a possession of the deceased, the mitzvah still applies.
- The mitzvah can apply on two levels. The first, the Beit Din can coerce the heir to fulfill the deceased’s wishes. The second, compulsion is not warranted, however, carrying out the instructions is a fulfillment of a mitzvah.
Others add that if fulfilling the wishes of the deceased would, in any way, lead to transgression of another law, one would be exempt from doing so. Otherwise, the obligation stands.
Moment of Truth
During the final moments of life, the total of one’s life experiences, the sum of all that one has accomplished and the plain truth of one’s failings, confronts the person unapologetically. At this time, a person speaks from the heart, revealing his deepest feelings unencumbered by distractions. This is the reason, explains Rabbi Kalonymus Epstein (1753-1825), the law mandates that we fulfill the words of the deceased. Because then that they speak with utmost sincerity and conviction and their intent is pure.
 Sedei Chemed, vol. III, pp. 562. Mishpat Ha-Tzava’ah, Sec. 3:1-12.
 Mishnah, Talmud Kesubot 69b.
 The poskim discuss the origin of this mitzvah. Tosefot (ad loc) imply that it is a mitzvah of Rabbinic origin. R. Yom Tov Algazi (1727-1802) in She’elot Uteshuvot Simchat Yom Tov (ch. 59) explains that the Sages enacted this law in order to provide the dying person with peace of mind with the knowledge that his instructions will be carried out. R. Yosef Shaul Nathanson (1808–1875) in She’elot Uteshuvot Shoel Umeishiv (Tinyana, 1) suggests that the mitzvah is a matter of genuine kindness (“chesed shel emes”) to one who can never repay the favor.
Rashbatz (Responsa, vol. II, ch. 53), on the other hand, views it as an aspect of the mitzvah of inheritance, included in the Torah’s statement (Devarim 21:16), “It will be, on the day he [the husband] bequeaths his property to his sons.” This view provides a Biblical allusion to this mitzvah.
Similarly, R. Yehoshua ibn Shu’ib (1280-1340) in his Droshos (Parshat Vayechi) gleans this mitzvah from the account of the passing of Yaakov where the Torah explicitly states, “And his sons did to him as he commanded them.” See, however, She’elot Uteshuvot Shoel Umeishiv (ibid.) where this position is challenged.
 This reflects the opinion of R. Meir. However, the Mishnah records a dissenting view of R. Yosi—that the money can be transferred directly to the husband, as the woman will ultimately have the prerogative to sell the field anyway and give the money to her husband. The law follows R. Meir.
 Rabbeinu Tam (1100-1171), Sefer Ha-Yashar (Chidushim), 108. Tosefot (Kesubot 70a, Ha kayma lan; Gitin 13a, Ve-ha lo mashach). Rosh, Ran and Meiri (end of Gitin). Rambam (Hilchos Zechiya Umatanah 4:5). She’elot Uteshuvot Tashbetz (Vol. II, ch. 53). This also appears to be the opinion of R. Yaakov ben Asher, in the Tur (Choshen Misphat, 252:2). R. Yitzchak bar Sheshet (in She’elot Uteshuvot Rivash, 290) as well as R. Akiva Eiger (ch. 150) and She’elot Uteshuvot Shevut Yaakov (vol. I, 168) assume that this is the consensus of the majority of the poskim. However, the opinion of the Shulchan Aruch is less clear. In Choshen Mishpat 250:23, it cites Rabbeinu Tam only as an alternative view. However, in 252:2, only the view of Rabbeinu Tam is cited. See also Shulchan Aruch Yoreh Deah, 267:77) in reference to the law cited by the dissenting view (see below fn. 8).
 An interesting application of this law is found in the Oxford manuscript of the Rambam’s Mishneh Torah (see p. 19). The Oxford manuscript belonged to an erudite individual who had painstakingly edited several sections of Rambam’s manuscript, with the Rambam’s oversight and blessing. Before his untimely passing, this scholar entrusted his manuscript with his corrections as well as some handwritten notes of the Rambam himself, to the courts for the benefit of the community of rabbis and scholars who wish to compare their copies to his. In his own handwriting, Rambam invokes the law of carrying out the wishes of the deceased, and instructs that so shall be done.
It should be noted that in the case under discussion, the item was clearly entrusted to a third party who was capable of fulfilling the wishes of the deceased and according to the Rambam, this is the only circumstance where the obligation applies.
 See She’elot Uteshuvot Ritva, ch. 54 and 101 who ascribes this view to R. Aharon Ha-Levi (1235-1290). See also Chidushei Ha-Ritva, Kesubot 70a.
 Gitin 40a.
 Shulchan Aruch HaRav, Choshen Mishpat, Hilchos Mechirah, 7. See also, Sema (Sefer Meirat Einayim), Choshen Mishpat, 252:8. Shach, ibid. 7. It appears that Rema, too, adopts this position (see She’elot Uteshuvot HaRema, 48).
 Cf. She’elot Uteshuvot Ginat Veradim (R. Avraham Halevi, 1650-1712) posits that unless the deceased clearly identified the individuals he wishes to obligate, the mitzvah does not apply (even if the instructions were given in their presence). His rationale is that this mitzvah is more lenient than others, and only becomes obligatory when clearly assigned to someone.
 Shulchan Aruch HaRav, ibid.
 See also note 3, above.
 She’elot Uteshuvot Tashbetz (vol. II, ch. 53).
 See She’elot Uteshuvot Shevut Yaakov, vol. I, ch. 268. Cited by Pitchey Teshuvah (Choshen Mishpat, 252:1). Kerem Shlomo, ibid.
 She’elot Uteshuvot Va-Ya’an David, vol. 5, 129.
 Presumably, because none of the criteria provided by either of the two major schools of thought regarding this mitzvah were met: A) According to many, the mitzvah applies only to a possession transferred to one’s jurisdiction, and B) the instructions were not issued in his presence.
 See She’elot Uteshuvot Maha-Rashdam, Yoreh Deah, 203.
 It can be argued that R. Shmuel ruled this way specifically because the instructions pertained to the body of the deceased. Indeed, in similar cases, such as when someone instructs that he should not be eulogized after his demise, his will must be honored (see Shulchan Aruch Choshen Mishpat, 253:30 and Sema, 69).
 See Sefer Chassidim, ch. 538.
 Ma’or Va-Shemesh, Parshat Devarim.