Claims for invalidation of wills (due to the testator's incapacity or being in a state at the time of making the will when he could not understand the significance of his actions and direct them)

Jurisdiction.

Claims for invalidation of a will are considered by the courts according to the general rules of claim proceedings – at the defendant's place of residence.

Definition of the legal relations of the parties and the law to be followed.

The legal relations of the parties in cases of this category arise from the application of the norms of Chapter 58 of the Civil Code, the Law "On Notaries" and are determined based on a set of data: the subject and basis of the claim, the defendant's objections to the claim, and other circumstances of legal importance for the proper resolution of the case.

The subject of the dispute is the will and its legality.

The basis of the claim filed with the court is the rights and legitimate interests of the plaintiff violated by the disputed will. At the same time, the indication by the plaintiff of a specific legal norm in support of the claim is not decisive when deciding by the judge which law should be followed in resolving the case.

Persons involved in the case.

The plaintiff for such claims may be a person whose rights and legitimate interests have been violated by the disputed will and for whom the recognition of the will as invalid has property consequences due to violations of the procedure established by civil law for drawing up, signing and certifying the will.

The defendant(s) is the person in whose favor the will was drawn up, that is, a person whose material and legal status depends on the validity of the will, and who can or has performed actions aimed at realizing the will of the testator expressed in the will, the validity of which is denied by the plaintiff.

At the same time, it is unreasonable to limit the range of possible defendants to the persons indicated in the disputed will as heirs. It should also include the beneficiaries and the executor of the testator (in the event that he is required to perform any action of a property or non-property nature aimed at achieving a generally useful goal).

A notary cannot act as a defendant, since he is not a subject of a disputed substantive legal relationship, there is no substantive legal relationship between him and the opposite party, he only has a legal interest in the outcome of the dispute.

The notary (or other official) who certified the will, the notary who opened the inheritance case in connection with the death of the testator, as well as other persons should be involved as third parties if the decision on the case may affect their rights and obligations towards one of the parties.

Facts to be established and proved, evidence and proof.

The subject of the evidence includes the establishment of the following facts:

1) the existence of a will drawn up in accordance with the requirements of the law;

2) death of the testator;

3) the invalidity of the will (the incapacity of the testator established by the court, as well as the drafting of the will by the testator when he did not understand the significance of his actions or could not direct them);

4) the fact of opening an inheritance;

5) other circumstances.

A will is recognized as the expression of a citizen's will to dispose of his property in case of death.

According to Article 1056 of the Civil Code, a will may be declared invalid at the request of a person for whom the recognition of a will as invalid has property consequences due to a violation of the procedure established by the Civil Code for drawing up, signing and certifying a will.

A claim may be filed with the court to invalidate the will in whole or in part.

In accordance with paragraph 1 of Article 1056 of the Civil Code, a will made in an improper form is invalid. The invalidity of a will is also based on the rules of Chapter 4 of the Civil Code on the invalidity of transactions.

A transaction is a conscious act performed, the expression of the will of each of the parties involved in it. Making a will is also a (unilateral) transaction, which must comply with the requirements of the law – express the will of the testator.

The grounds for invalidating a will may be general grounds for invalidity for all types of transactions (Articles 157-159 of the Civil Code), as well as special ones based on the legal requirements for the form, content, drafting, signing and certification of wills (Articles 1050-1052 of the Civil Code). The basis for invalidating a will, like any transaction, is a violation of one or another rule of law. The most important principle of inheritance law is the freedom of probate in choosing an heir.

When considering such claims, the courts should keep in mind that the legal features of a will are:

- the personal nature of the will;

- freedom of expression of the testator's will;

- unilateral nature of the transaction;

- the form of a will established by law and strictly regulated;

- the secret of the will.

Within the meaning of Articles 1046, 1050 of the Civil Code, the right to make a will belongs only to capable citizens. The verification of legal capacity is carried out by the person certifying the will (notary, etc.).

Written evidence must be evaluated by the court in terms of reliability (absence of defects in the paperwork, availability of necessary details, compliance with the drafting procedure, etc.).

Explanations of the parties and third parties may be used as means of proof; witness statements (neighbors, relatives, friends, work colleagues, medical and social workers, etc.); written evidence (patient's outpatient card, materials of another civil or criminal case related to this trial, etc.).

If necessary, to establish the testator's mental state at the time of making the will, the court should appoint a post-mortem forensic psychiatric examination.

When evaluating an expert's opinion, the court should take into account that it, as well as other evidence in the case, is not an exclusive means of proof and should be evaluated in conjunction with all the evidence available in the case. At the same time, the decision should assess the conclusion, indicate what the expert's conclusions are based on, whether they have taken into account all the submitted materials and whether an appropriate analysis has been made.The court's assessment of an expert's opinion may be influenced by the level of his competence, and therefore, the introductory part of the opinion should be carefully examined, which indicates education, specialty, work experience, academic degree and academic title, and position held.

In cases of insufficient clarity or incompleteness of the expert's opinion, as well as in case of doubts about the correctness or validity of the expert's opinion, an additional or repeated examination may be ordered.In some cases, for a more differentiated assessment of the individual ability of testators (especially the elderly) to fully understand the significance of their actions and determine to what extent he could direct them, it is possible to appoint a comprehensive forensic psychological and psychiatric examination.

Depending on the grounds for invalidating the will, in addition to documentary evidence, the court may accept testimony as evidence.

When considering disputes about the invalidation of a will by the courts, it should be borne in mind that the law clearly limits the list of grounds on which another person can sign a will for the testator: physical disabilities, serious illness or illiteracy of the testator, which should be recorded in the text of the will. These circumstances are subject to verification by the court on the basis of documents, witness statements and other evidence.

In accordance with paragraph 2 of Article 1056 of the Civil Code and paragraph 20 of the regulatory decree of the Supreme Court "On certain issues of the application of inheritance legislation by courts", typos and other minor technical violations committed during its drafting, signing or certification cannot serve as grounds for the invalidity of a will, if the court finds that they do not affect the understanding of the will of the testator..

Not allowed:

- contesting a will before opening an inheritance;

- establishing the legal fact of making a will.

It seems necessary to specify in the operative part of the court's decision the date of the will, as well as the notary who certified the will, which is recognized as invalid, and the number under which it was entered into the register of registration of notarial acts (since a citizen can make several wills in one day and certify them with different notaries).

The list of the main documents attached to the statement of claim

In accordance with the requirements of Article 149 of the CPC (see paragraph 1), including documents confirming the circumstances on which the plaintiff bases his claims:

- the will;

- death certificate of the testator;

- documents on the ownership of inherited property to the testator: title documents for immovable property, certificate of registration of vehicles, certificates of registration authorities, certificates of pension savings and bank deposits, etc.);

- a copy of the court's decision declaring the testator incompetent, or the conclusion of a forensic psychiatric examination on whether the testator at the time of making the will could understand the significance of his actions and direct them, or any other evidence indicating the mental state of the testator's health (medical documents, outpatient and inpatient patient records, certificates from a psychiatric clinic about the testator's registered status, etc.)

Laws to be applied in the consideration and resolution of cases

Civil Code (Chapters 4, 58).

The Law of July 14, 1997 "On Notaries".

Normative Resolution of the Supreme Court of June 29, 2009 No. 5 "On certain issues of the application of inheritance legislation by courts".

The Law of July 14, 1997 "On Notaries".

Normative Resolution of the Supreme Court of June 29, 2009 No. 5 "On certain issues of the application of inheritance legislation by courts".

Order of the Minister of Justice dated January 31, 2012 No. 31 "On Approval of the Rules for performing Notarial Acts by Notaries"

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