Battle over will breaks down East London community

The East London Chevrah Kadisha (ELCK) is in an ugly dispute with the former rabbi of the coastal city’s community, which has led to the breakdown of the congregation in spite of extensive efforts by the Beth Din to mediate a resolution.

And as Rosh Hashanah and Yom Kippur draw closer, it’s likely that the 38-strong congregation wouldn’t have gathered in shul if the lockdown was not in place.

As the conflict with the rabbi unfolded, the community’s cohesion crumbled with it. This once thriving, albeit dwindling community used to gather every Friday and Saturday morning in shul for a service. They would celebrate chaggim together, have brochasafter shul, and generally enjoy the fruits of a healthy congregation. Today, there is much animosity.

The whole sorry saga revolves around the will of the late Israel Bayer, who died at the age of 92 on 5 December 2018. The will has become the subject of litigation in the High Court and before the Beth Din, with applications and counter-applications between the ELCK and a rabbi accused of attempting to divert funds from Bayer’s estate that were originally intended for charity. The community is caught in the middle.

The congregation’s now former rabbi, Rabbi Chanoch Galperin, went before a disciplinary process that concluded in February this year, and was presided over by attorney Janette Gordon.

Her finding from the hearing stated, “The employer (East London Hebrew Congregation) advised that as a result of the employee’s [the rabbi’s] conduct, the congregation has all but been dissolved. Shul is no longer held, and the majority of the members of the congregation have stated that they no longer want the employee to continue as the rabbi. It was evident from the process that the relationship between employee and the congregation/employer has irretrievably broken down.”

In a notice of motion submitted to the High Court Eastern Cape Division in Grahamstown on 7 July 2020, which has since been withdrawn for procedural purposes , the ELCK alleges that Galperin tried to gain control of Bayer’s estate by forging his will, which would enable him to receive a third of Bayer’s estate.

However, both parties agreed to a hearing by the Beth Din on 19 September 2019, which found the rabbi to be innocent, and the allegations of him forging the will to be “rejected and without any merit”.

The advocate representing the ELCK, Stanley Pincus SC, was critical of the Beth Din’s process. However, the rabbi, represented by his attorney Michael Bagraim, applied to make the Beth Din’s decision an order of the High Court on 27 August 2020. Pincus says the ELCK will oppose this, and bring a counter application, which if granted, will result in the ELCK not being bound by the Beth Din ruling.

Dayan Rabbi Gidon Fox says, “The issue was investigated thoroughly and impartially. This is a complex issue, and the judgement speaks for itself  Furthermore, with the claim of fresh evidence, the Beth Din was willing to revisit the ruling based on said evidence. This offer has, to date, not been taken up by the claimant [the ELCK].”

However, recent correspondence shows that the ELCK wanted a retrial with the Beth Din, but Galperin rejected it.

In an affidavit, the rabbi writes that he had a “healthy and friendly relationship with the late Mr Israel Bayer, and assisted him with his affairs. In the last will and testament of the deceased, dated 22 March 2018, the deceased bequeathed one third of his estate to me.”

In a letter to a number of ELCK members dated 14 July 2020, the organisation’s treasurer, Ellen Ettinger, writes, “At the beginning of 2019, we discovered that the will of the late Mr Bayer had been lodged with the Master of the High Court Grahamstown. It was a handwritten will that the attorneys who had all Mr Bayer’s previous wills had no knowledge of until after his death, when Rabbi Galperin brought it to them.” Ettinger claims that the signature appeared to differ with his previous wills, and the ELCK didn’t believe it to be Bayer’s signature.

“In Mr Bayer’s last will dated 18 October 2017, his estate was to be paid out with Chevrah Kadisha Johannesburg, Arcadia Children’s Home, and the ELCK each receiving one third of his total estate. However, in the handwritten will, the ELCK was replaced by Rabbi Galperin as the one beneficiary,” writes Ettinger in her letter.

The Beth Din judgement says, “It was the respondent [rabbi] who actually convinced the deceased to include the ELCK as a beneficiary of his estate … something that did not feature in previous wills. This was confirmed by lawyer Ingrid Gaertner.”

Both sides submitted copies of the will to forensic experts, who came back with differing opinions as to whether the handwriting was legitimate or not. Because of this, the Beth Din judgement found neither handwriting analysis report to be conclusive.

Bayer’s two caregivers signed as witnesses to the will in question, but later one of the witnesses, Dorothy Manuel, wrote an affidavit saying that they had not been in the same room as Bayer when the will was signed.

She and fellow carer, Kholiwe Fekani, later signed new affidavits saying they had, in fact, been in the same room as Bayer. Manuel also told the Beth Din that her original affidavit had been signed under duress, and that “she had been promised to be compensated for her time”. The ELCK says this is untrue, and the new affidavits were drawn up only ten days before the Beth Din hearing.

Bayer resided at Kennersley Park Leisure Home for Senior Citizens from 2 June 2017 to about 28 August 2017. The rabbi says he then moved him to a smaller facility, The Residence. He resided there until about 30 January 2018, after which the rabbi says he moved him to a flat with a garden and paid two carers to look after him full time.

In her letter and the notice of motion, Ettinger alleges that she and other community members tried to visit Bayer, but the rabbi wouldn’t give them Bayer’s address. The rabbi says Bayer left his previous facility because he couldn’t get kosher food and wasn’t being treated well, and he didn’t hide him from the community.

The rabbi says he had power of attorney (POA) to “sort out some of the issues. This was on the advice of the estate attorney so that Mr Bayer’s affairs could be properly handled”. Ettinger writes, “We discovered that the rabbi had taken complete control of the financial matters regarding Mr Bayer using a POA which was signed by Mr Bayer. We have been advised by our attorneys that this POA is fraudulent.”

Documents in the notice of motion show that Bax Kaplan Russel, on behalf of the rabbi, wrote to Derek Puchert, a board member of Kennersley Park (where Bayer was residing at the time), advising that “we insist that as our client [the rabbi] has been specifically chosen to handle Mr Bayer’s financial affairs, that nobody be allowed to approach him [Bayer] or have anything signed or any payments approved without our client [the rabbi] being present”.

Puchert, an attorney, said that he had met Bayer, in which he is recorded as having “repeatedly informed me that he had no recollection whatsoever as having signed a general power of attorney, didn’t want to sign any such document, was most concerned as to why your client [the rabbi] was interested in his financial affairs or should have any control over them, didn’t want him or anyone to have any control over them, and even questioned the authenticity of your client being a rabbi.”

The Beth Din didn’t have access to this correspondence when making its judgement. In the notice of motion, a report by psychiatrist Dr S Mtshemla shows that Bayer was of sound mind at the time. It was the rabbi who took Bayer to be assessed.

In the later motion, it is described how ELCK co-presidents Louis Robinson and Bernie Aufrichtig as well as Ettinger went to the rabbi’s house to discuss the issue of the will, but the meeting became heated, and the issue was left unresolved.

After further investigations revealed concerns, disciplinary proceedings were instituted. Documents submitted to the enquiry show 12 charges questioning the rabbi’s conduct. Gordon, the attorney presiding over the enquiry found the rabbi guilty of all 12, recommending summary dismissal. On this basis, the East London Hebrew Congregation terminated Rabbi and Rebbetzin Galperin’s contract. They were asked to vacate the community’s property by 31 March 2020, which they haven’t yet done.

The Beth Din’s conclusion is, “The will was signed by the deceased in the presence of the two witnesses who signed on the will, and in view of the above, the charge that he forged the signature of the deceased and altered the will of his own accord in his favour, is rejected without merit.”

Fox says, “It should further be noted that in this matter, the Beth Din wasn’t only requested to adjudicate the question of the will – which is a legal matter. It was also requested to broker an agreement which would allow for the high holy days’ services to continue unaffected. Following a lengthy engagement with both the claimant and the respondent separately, this was achieved.”

However, services dwindled after the High Holy days last year, and with no official rabbi and the advent of COVID-19, they have essentially come to an end. This has had a sad and hopefully impermanent impact on what was once one of the hubs of Jewish life in South Africa.