The practice of invalidating a will is quite extensive. The legislation in this regard contains a list of grounds under which interested parties can contact the authorized authorities to cancel a document fixing the last will of the owner. Let us further consider how a testament is invalidated in court .
Characteristic
A will is a document expressing the last will of the property owner. Its compilation belongs to the category of unilateral transactions. Accordingly, the general rules must be followed during the execution of the document. A statement of claim declaring a will invalid may be filed exclusively after the death of the testator. This requirement is stipulated by the fact that during the life of the owner’s orders are not subject to execution, respectively, they cannot be challenged. Individuals whose immediate interests (in their opinion) were infringed by this document may file a claim for the recognition of the will invalid . If the rights of subjects recognized as fully or partially incompetent are violated, then their legal representatives (guardians) can contact the court.
General grounds
A will can be recognized partially or completely invalid. The procedure is carried out in accordance with the procedure established by law. The grounds for its implementation may be general and special.
In the first case, the
recognition of a will is invalid if:
- The document is framed in violation of the law.
- The testator is limited or completely incompetent.
- At the time of the transaction, the owner could not control his behavior.
- The preparation of the document was carried out under the influence of deception, threat, etc.
Special grounds
Their list is more extensive. The most popular special grounds include:
- The absence of a document containing the last will. A will must be submitted in writing. If the will of the subject was expressed verbally, then it has no legal force. Accordingly, any actions aimed at its implementation in this case will be unlawful.
- Failure to comply with the certification requirements. A notary or other person with the authority to certify the document is involved in the preparation of the will. In the absence of a corresponding mark, the transaction may be challenged.
- The presence of inappropriate witnesses during the signing, preparation, certification, transfer of wills. It is worth noting that these persons are invited to the procedure at the discretion of the testator. However, the law provides for cases when their presence is mandatory. Inadequate witnesses will be considered to be citizens certifying the will, interested persons, their relatives, subjects, partially or fully incompetent, illiterate, foreigners who do not speak the native language of the owner.
- The absence of the signature of the testator. The exception is cases when the official handler has the right to put her in connection with the owner’s lack of physical ability to do this on his own.
- The absence of witnesses when they are required by law.
- Signature of the will by a handler acting as an interested, certifying person who is incompetent (partially or completely), illiterate, a foreigner who does not speak the language, etc.
- Paperwork is not by hand of the testator. This refers to the compilation by another entity, using various technical means, etc. This provision applies to cases when a will is closed or drawn up in an emergency.
Classification of improper documents
A testament can be:
- Worthless. This is recognized as a document executed in violation of the form or by an incompetent entity. Initially, it has no legal force. In such a situation, a decision to invalidate a will is not made. However, the fact of nullity must be confirmed. This is done through the adoption of a definition.
- Undeniable. Such a document must be declared null and void in accordance with the established rules.
Stages
How is a will invalidated? Judicial practice in such cases is based on the rules of the Civil Procedure Code. At the first stage, the necessary materials, certificates, written evidence are collected. They may include certificates from medical institutions where the testator was treated, video and audio recordings, and court orders. Legislation allows the use of witnesses. All arguments that the interested person will bring must be reliable and objective. After the necessary evidence has been collected, the citizen draws up a claim for the recognition of the will as invalid . As part of the consideration of the case at the initiative of either party, an examination may be conducted. At the end of the trial, the court makes a decision.
Features of handling the requirement
When making a claim, you must be guided by the requirements of the law. The document must contain the required details listed in the rules. These include:
- The name of the court authorized to consider the case.
- F. I. O. of the person whose rights are violated, his place of residence, contact details. Phone is required, email address mail - at the discretion.
- Information about the defendant (s).
- Information about third parties claiming or not claiming.
The text should clearly describe the subject of the dispute. An application for the recognition of a will invalid shall be drawn up in the official business language. Emotional expressions in the text should be avoided. Experts recommend a preliminary study of the rules governing inheritance relations. This will allow supporting your arguments with references to legislation. The applicant's requirements must also be clear and unambiguous. At the end of the document is the date of compilation and signature. All materials collected are attached to the lawsuit. Moreover, their number should correspond to the number of parties to the case.
The specifics of the appointment of expertise
In some cases, certain circumstances may complicate the recognition of a will as invalid. Judicial practice shows that in such cases, an examination is appointed to remove obstacles. For example, in the presence of a dispute about the testator’s psychological capacity, it becomes necessary to attract qualified specialists to the process. They conduct a post-mortem examination and issue an opinion.
Important point
It must be borne in mind that the court has the right to refuse to satisfy the request for an expert examination. In this case, the court makes a determination in which it substantiates its conclusions. If one participant insists on an examination, and the second against, the court is obliged to consider their application and make a decision. If the procedure is carried out at the initiative of the subject who submitted the requirements, and he wins, then the defendant shall be charged for the work of the specialist.
The participation of the parties in the examination
In accordance with the law, the plaintiff and defendant may:
- Make a list of questions to a specialist.
- Choose a specific expert or organization.
- To challenge a specialist.
- Examine the definition of the appointment of the examination, as well as a list of issues to be clarified.
- View the conclusion.
- Submit applications for review of the results of the completed procedure.
The rules provide for other possibilities of the parties.
The timing
A request for confirmation of the nullity of a will may be submitted within 10 years from the date of death of the person who made it. To challenge the law provides for a shorter period - 1 year. The calculation of this period starts from the date when the person whose rights are infringed received information on the basis of which the law allows the recognition of a will as invalid . As such a moment, the opening day of the inheritance case will not necessarily be. The plaintiff may become aware of the relevant information after this date.
Effects
Invalidation of a will does not imply deprivation of the inheritance of persons entitled to it by law. These entities can receive property due to them, according to the sequence provided by law. In some cases, before drawing up the disputed document, another one was drawn up. In this case, the previous will is restored in force.
Counter claim
Invalidation of a will , satisfying the requirements of one participant, may at the same time infringe on the rights of another. In such a situation, the latter is given the opportunity to file a counterclaim. The application is made in accordance with the rules provided above. In this case, the interested entity must also attach documents and other materials to it, confirming the validity of its claims. The law also provides the citizen with the opportunity to submit a petition for an examination or to challenge the results of an already completed study.
Deprivation of Mandatory Share
The law establishes a list of persons who receive part of the inheritance, regardless of the contents of the will. If, in his last will, the owner has not provided for the allocation of an obligatory share, then the document may be challenged. Persons who inherit in any case include minor children, disabled parents, spouse, dependents. The latter can count on the share of the property only if before the death of the owner they lived with him for at least a year. When applying, it is necessary to attach the birth certificate of marriage / documents, documents proving the disability of the spouse / children or being dependent.
Highlights of Proof
When contesting a will, in accordance with Article 1131 of the Civil Code (Clause 3), clerical errors, minor violations of the rules for executing a will that do not affect the understanding of the will expressed in it, will not act as grounds for invalidating the document. If the authority authorized to consider the case considers that the existing shortcomings do not create obstacles for an unambiguous interpretation of the content of the act, the demand of the interested person will not be satisfied. The facts that will need to be proved include:
- The presence of a will.
- The death of the owner. As evidence, a certificate is issued by the registry office.
The claim will be rejected if it is filed after the death of the testator, but before the opening of the case.