Sources and Reasoning:
In the Shulchan Aruch (Laws of a Gift Made by a Shechiv MeRa, siman 252, סעיף 2):
It is a mitzvah to fulfill the words of the deceased, even if a healthy person gave instructions and then died, provided that he had already entrusted [the property] to a third party for this purpose. The Rema writes in his gloss: However, if it had been in his possession previously and not for this purpose, or if it came into his possession after the will, this does not fall under the mitzvah to fulfill the words of the deceased. It is evident that the Shulchan Aruch rules in accordance with Rabbeinu Tam, that there is no obligation to fulfill the deceased’s words where it was not done in accordance with Halacha—namely, if it was not deposited with a third party during his lifetime.
The Sema and the Shach, however, raised a difficulty from the Ritva, whose words are cited by the Beit Yosef: one who swore or vowed to give a certain amount to another person, and died without giving it, his heirs are exempt, and this does not fall under the mitzvah to fulfill the words of the deceased. The Sema and the Shach (ibid.) questioned this, for it implies that even where he did not deposit it with a third party for this purpose, since he instructed his heirs to give it, we say that there is a mitzvah to fulfill the words of the deceased. The Maharshal?d”am (Yoreh De’ah, siman 203) writes that the entire dispute between Rabbeinu Tam and the Ramban concerns whether one may compel fulfillment of the deceased’s words; however, all agree that there is a mitzvah to heed them, in order to bring repose to the deceased’s spirit. See also Shut Sho’el U’Meishiv—Netanzon (first edition, third series, 157), who discusses this matter at length.
Nevertheless, where the will entails a prohibition or even a trace of prohibition, certainly one is not commanded to heed the deceased’s instructions (siman 538). See also Beit Yosef (Yoreh De’ah, siman 376). Even regarding a matter of Rabbinic custom, one should not heed his instructions; see Shut Sho’el U’Meishiv, first edition (Netanzon, third series, siman 157).
This response was translated automatically from Hebrew and has not yet been reviewed by a person. Therefore, it may contain inaccuracies and should not be considered a definitive reference.
