How to challenge a will for an inheritance, challenging a will before the opening of an inheritance: judicial practice

Issues regarding the regulation of inheritance relations are provided for in the regulations of Chapter 5 of the Civil Code of the Russian Federation, which reveals the essence of inheritance law.

Its instructions provide for a careful attitude to the last will of a person who has expressed a desire to personally dispose of his property during his lifetime. In rare cases, a will is revoked because it enjoys unconditional priority in the judicial body.

At its core, a will is a document drawn up in accordance with the requirements of the legislator. He sets requirements for form and content: the will must be written in writing, signed by a notary and certified by his seal. In some cases, it is certified by an official or authorized person.

Its content expresses the will of the owner of some property, which should pass to another person after his death. The owner of the property, by his own will, can give relatives or an outsider the right of ownership to own his property or deprive them of the inheritance.

A will belongs to the category of a unilateral transaction in accordance with the provisions of Article 1118 of the Civil Code, which acquires legal force after the death of the person who left it.

It notes that rights and obligations arise after the opening of an inheritance. It is opened by a notary authorized by the testator.

The day of opening of the inheritance is usually considered to be the day of his death or the announcement of the decision of the judicial authority to recognize the testator as deceased. The place of its opening is the last place of residence of the testator, if known. But in all other cases, the place of discovery is recognized as the location of the inherited property.

What will be the inheritance

The term “inheritance,” in accordance with the instructions of Article 1110 of the Civil Code, means the transfer to other persons of the deceased person’s ownership of his property. The transfer of property is carried out unconditionally, which means the transfer of debt obligations. They can be distributed among several heirs or transferred to one of them.

The rules of assignment do not apply to the inherited estate, so it cannot be donated, sold, transferred or bequeathed to anyone . Inheritance refers to material goods, property rights and obligations that belonged to a deceased person. It does not include items of a personal nature. The norm is provided for by the instructions of Article 1112 of the Civil Code of the Russian Federation.

These include:

• alimony payments;
• compensation for damage to the life or health of third parties;
• other types of property that are not subject to transfer to heirs in accordance with the instructions of regulatory legal acts.

The heir has the right to personally dispose of the inheritance; he can accept it or refuse it. If he decides to renounce it, he must draw up a document to transfer the inheritance to other persons, including the state. Its acceptance is carried out on the basis of a statement expressing the wishes of the heir.

Controversial issues and conflict situations related to the receipt and distribution of the property of a deceased person are resolved during the trial. A civil case is initiated on the basis of a statement of claim. The judicial body makes a decision, guided by the standards of legal acts and real facts, confirmed by documents.

By the letter of the law

The right of inheritance passes to persons included in the next line if the heirs of the previous line refuse the inheritance or their death.

In accordance with the instructions of Article 1142 of the Civil Code of the Russian Federation, they primarily include:

• children regardless of age, blood relationship, that is, legally adopted children;
• second spouse;
• blood or adoptive parents;
• grandchildren and their descendants.

The second stage is represented, in accordance with the instructions of Article 1143 of the Civil Code, by full and half-siblings, grandparents on both lines, nephews and nieces. Subsequent heirs, in accordance with the instructions of Article 1145, include persons who have the third, fourth and fifth degree of relationship with the testator in the family tree.

Is it permissible to challenge a will before the opening of the inheritance?

Each of their relatives has the right to challenge the will in the prescribed manner. But the legislator does not allow challenging the will by persons whose interests have been violated until the opening of the inheritance.

According to generally accepted rules, there are two ways to transfer property:

• according to the law, it is carried out in the absence of a will drawn up by the deceased person or during court proceedings when disagreement is expressed with the will of one of the relatives;
• according to a will expressing the will of the deceased person. Its conditions must be fulfilled without any reservations.

In the first case, the inheritance mass is subject to transfer to the closest relatives.

The priority right to receive it is given to children, the second spouse, and parents.

Minor children can inherit property, but they can take ownership upon reaching adulthood. In the second case, the inheritance passes into the possession of the persons specified in the will.

Procedure

Questions regarding filing a claim and the procedure for its consideration are regulated by the standards of the Civil Procedure Code. When submitting it, citizens pay a state fee of 350 rubles in accordance with the provisions of Article 333.19 of the current Tax Code. A receipt for its payment is attached to the statement of claim. It is submitted to the city or district judicial authority at the location of the estate.

Filing a claim

The statement of claim is drawn up in accordance with the requirements of the Civil Procedure Code. It can be drawn up in any form on a sheet of standard A-4 paper using a writing pen with blue ink.

The content of the statement of claim states:

• full name and legal address of the judicial authority;
• information regarding the personal data of the plaintiff and defendant, their date of birth, home address, contact telephone numbers;
• information about the person who left a will, his personal data, date of birth and death, home address of his last place of residence;
• information regarding the notary office that deals with inheritance matters;
• the grounds that made it possible to file a claim to challenge the will, a reasonable evidence base for the receipt of inherited property;
• a link to the relevant regulations of legal acts that allow you to challenge a will;
• list of documents attached to the application.

In general, the statement of claim must express a request that the will be declared invalid in full or in part thereof. It is signed by the applicant and the date of its writing is indicated on it.

Statement of claim for invalidation of a will

Attached to the application:

• the applicant's passport proving his identity;
• death certificate of the testator;
• will or a copy thereof;
• documents confirming the degree of relationship between the applicant and the testator.

Who does the right apply to?

The rule on challenging a will applies in accordance with the instructions of Article 1131 of the Civil Code of the Russian Federation to heirs of the first priority. They would be entitled to the property of the person who made the will if the inheritance procedure was carried out according to the law. If there are none, then the right to challenge passes to the heirs of subsequent orders.

The possibility of a claim being filed by persons who are legally entitled to an obligatory share of the inheritance cannot be ruled out.

As a rule, the right to receive it is vested by the legislator:

• parents who have lost the ability to work, who were dependent persons;
• under 18 years of age , a child disabled since childhood.

These persons are entitled to a mandatory share in the amount of 1/2 of the inheritance due to the heirs by law.

Deadlines for appeal

The challenge procedure must be carried out within the time limits established by law.

The legislator set the period for challenging a will by the instructions of Article 181 of the Civil Code, amounting to:

• 3 years if facts of the will’s nullity are revealed. For example, it was executed incorrectly, evidence was presented that the testator was declared incompetent;
• 1 year , if the will has characteristics that allow it to be challenged. For example, it was compiled forcibly using threats and violence.

An heir with violated rights may file a claim from the time the fact of violation is discovered. The best option is to contact the judicial authority within six months from the date of opening of the inheritance, until the issuance of a certificate of the right to inherit property.

Invalidation of a will

An indispensable condition for the validity of the application is the correspondence of the will and the will of the person who wrote the will. A will is considered valid if it is drawn up by a legally capable person who is in clear consciousness. He must understand and be aware of the meaning of the actions he performs, manage them and know about their consequences.

If a will was written under duress, by an incapacitated person or by a person with limited legal capacity, then it is declared invalid.

In accordance with the instructions of Article 1131 of the Civil Code, a will is invalidated only by decision of a judicial authority or if it is “void”.

Grounds for the invalidity of a will in accordance with the instructions of Article 168-179 of the Civil Code of the Russian Federation:

• non-compliance with legislative acts;
• failure to comply with rules regarding written form;
• violation of the rules on the mandatory certification of a will by a notary;
• lack of signature of the person who wrote the will.

A will may be declared invalid as a whole, although the possibility of its individual parts being invalidated cannot be ruled out.

If it was compiled under the influence of delusion, violence and thunderstorms, under the confluence of difficult life circumstances, then it is obviously considered invalid due to its insignificance.

Its nullity is established by the notary, regardless of its legal status.

And in conclusion, it should be noted that the inheritance mass is subject to transfer to the relatives of the deceased.

If there is a will, the will of the deceased person is carried out unquestioningly, therefore the property is transferred to the persons designated in it.

Attention!

• Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
• All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.

That's why FREE expert consultants work for you around the clock!

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

Challenging a will for an apartment Challenging a transaction for the purchase and sale of an apartment

Legal and moral basis for challenging wills

Accepting an inheritance is often accompanied by drama and litigation. After the death of the testator, the relatives suddenly find out that he transferred his apartment to a complete stranger (roommate, neighbor, social worker, church employee, etc.).

Lawsuits begin, post-mortem forensic examinations begin, witnesses are found, etc.... The court must confirm the validity of the will and reject the claim, or do the opposite.

Is it possible to challenge a will after the death of the testator, and how is this done? Which heir can challenge the will for an apartment? How is a will contested in real court practice?

How to challenge a will for inheritance

In principle, any will can be challenged in which, in the opinion of the plaintiffs (persons who consider themselves unfairly deprived), their legal rights are infringed or circumvented. This is done by way of appeal through the court. But a posthumous order can be canceled only in two cases:

• due to its recognition by the court as invalid;
• or due to the fact of its insignificance (Article 1131 of the Civil Code of the Russian Federation).

Who can challenge the acceptance of an inheritance under a will?

Only potential heirs of the deceased can challenge a testamentary document. Most often, the will is contested by the heirs of the first priority (children, parents or spouses), since they have a priority right to inheritance. But only if they are not unworthy heirs:

• for example, by parents deprived of parental rights;
• children who abandoned their parents in old age;
• persons who do not care as much as they should about the maintenance of the testator or who forced him to draw up a will in his favor.

Which will is controversial and which is void?

A will is a type of transaction, therefore it is subject to Article 166 of the Civil Code of the Russian Federation on voidable and void transactions.

Important: A voidable transaction is one whose legality is questioned and can be confirmed or refuted by judicial challenge. A void transaction is such by the very fact of its completion. Nullity does not require confirmation through the court, unlike a controversial (disputable) transaction.

For example, if a will was signed by an incompetent person whose incapacity is recognized, it is void, and this fact does not require judicial proof, since it is obvious.

At the same time, an insignificant transaction leads to undesirable consequences: the inheritance is accepted by an unworthy heir, the rights of the heirs under the law are violated, etc.

Persons injured as a result of a void transaction are forced to go to court to have it declared void (although it is already void). The point of the claim is to eliminate the consequences of a void transaction and punish the perpetrators.

Grounds for the nullity of a will

A will is considered void:

• when it is committed by an incapacitated or partially capable person (in case of partial legal capacity, the fact must be proven that at the time of the transaction the testator did not give an account of his actions, and the notary knew about it);
• the will was submitted by a representative or other persons, and not by the testator personally;
• the document was drawn up in simple written form, and not in notarial form* (exceptions include a will drawn up under emergency circumstances, in compliance with the conditions specified in Article 1129 of the Civil Code of the Russian Federation);
• when disclosing the secret of a will;
• the transfer and reading of a closed will took place without witnesses;
• the witness present at the signing or approval of the document was an interested person, for example, an heir or his closest relative, etc.

Note*: Wills certified by representatives of local self-government bodies or consulates are also considered notarized (Article 1125 of the Civil Code).

Wills approved by the heads of hospitals, hospitals, correctional colonies, expeditions, polar stations, commanders of military units, captains of long-distance vessels (Article 1127 of the Civil Code of the Russian Federation) are equal to notarized wills.

According to the Code, wills equivalent to notarial wills must be signed by the testator in the presence of a certifying person and a witness.

In what cases can you challenge a will?

There are many reasons for filing a lawsuit challenging a will:

• violation of the plaintiff’s rights to inherit property by law (for example, he has the right to an obligatory share of the inheritance or is an heir by nomination in the event of the death of the main heir, etc.);
• issuance of a certificate of inheritance to an unworthy heir (Article 1117 of the Civil Code of the Russian Federation);
• invalidity of the cancellation* of the original will;
• inclusion in the inheritance of property belonging to another owner;
• absence of registered property rights** of the testator at the time of opening of the inheritance;
• the absence of part of the bequeathed property or the entire estate, since the testator managed to dispose of it before his death;
• unidentified family relationships, as a result of which the potential heir was not called to inherit, and other reasons.

* The testator has the right to cancel or change his original will (or part of it) through a new one, without notifying the heir or other persons. Cancellation of a subsequent will does not automatically restore the original document (Article 1130 of the Civil Code of the Russian Federation).

**The lack of ownership rights to property does not deprive the testator of the right to bequeath it, since, according to Art. 1120 of the Civil Code of the Russian Federation, any property can be bequeathed, even those that have not yet been acquired.

If the property is not available upon entry into the inheritance (it was never acquired or was sold before the death of the testator), the testamentary transaction is invalid, and the property claims of the plaintiff under the right of inheritance cannot be satisfied.

Why do courts recognize void transactions as voidable?

It would seem that it would be easier to distinguish a void transaction from a voidable one. But our legislation provides loopholes for all occasions.

Therefore, it is not surprising when serious crimes, for example, a will drawn up under threats, torture, or other means of pressure, suddenly magically turn into a “voidable transaction.”

There is no point in thinking that the courts are occupied by profane people and some kind of ignoramuses. There are sophisticated people there who know the whole technique of dual interpretations of laws.

A transaction that violates the law is voidable unless it affects the “fundamentals of the rule of law,” morality, and “at the same time,” public interests.

Have you already thought that making a transaction under threats and mocking the elderly and sick people affect the fundamentals of law and order? But no. It will not be possible to find out what the “fundamentals of law and order” are in the Civil Code.

Clicking on the link sends you to the decision of the arbitration court on the claim against the Ufa Oil Refinery JSC about a sham transaction in order to conceal taxes. From this decision, only one thing is clear: tax concealment is the main crime against “the foundations of law and order, morality and ethics.”

That is, only public law and order is important, and what happens in the apartments of the “orphan and wretched” is no one’s business. Even if old people are killed or abused there, all this can be challenged.

Challenging a will for an apartment

Before filing a claim, you need to pay attention to the following facts:

• Minor defects (mistakes, corrections, clerical errors), if they do not distort the meaning of the will, as well as failure to comply with formalities when signing, are not grounds for declaring the will invalid (clause 3 of Article 1131 of the Civil Code).
• A dubious approving signature, an incorrectly indicated date or place of conclusion of a testamentary transaction are not yet indisputable facts of its invalidity and require judicial investigation.
• Not the entire will, but only a part, may be declared invalid if its absence does not affect the contents of the entire document.

It is impossible to challenge a will before it comes into legal force.

For example, the children of the testator learned that their father was going to transfer his apartment (or has already transferred it) to his cohabitant, with whom he began to live together after the death of their mother.

Trying to prevent injustice (in their opinion) and considering the new common-law spouse to be a conscious swindler, they begin to file complaints in court.

The court may not only reject the claim, but also accuse the heirs of disclosing the secrets of the will.

But here a contradictory situation may arise: on the one hand, the secret of the will cannot be disclosed, and on the other, it may actually be null and void from the moment it was made (not to be confused with discovery), that is, from the moment it was signed.

Another example. A person was forced to draw up a document, threatening his health and life, under the influence of alcohol, drugs, psychotropic drugs, or taking advantage of his temporary incapacity.

Such a will can be declared void before its opening and before the onset of its consequences, according to the Criminal Code. In this case, you need to contact not the court, but the law enforcement agencies, which will conduct an investigation.

If the facts are confirmed, the heirs will be found unworthy, they will be charged, and the will will be revoked.

The claim of the testator himself with a request to have his will invalidated will also be rejected, on the basis that the testator can exercise the right of cancellation, on the basis of Art. 1130 GK.

There is also a situation like this:

A will may be declared void on the grounds that the person in whose favor it was drawn up did not have the right to establish personal contacts (for example, it was a social worker).

As a result of an internal investigation, the unscrupulous social worker is fired, and the testator draws up a new will, and it names... the same person (now a former social worker) as the heir.

If the will is declared invalid, all heirs at law appearing in it, including by testamentary refusal, and other persons specified in it do not lose their rights of inheritance in the future. That is, if a new “correct” document is drawn up, all persons excluded under the first will can again be called upon as heirs.

Limitation period for voidable and void wills

Deadline for contesting a will:

• void - three years from the date of opening of the inheritance, that is, the death of the testator;
• contestable - one year from the time the person interested in challenging the will learned or should have learned about the opening of the inheritance.

However, due to the ambiguity of Art. 168 and 169 of the Civil Code of the Russian Federation, the courts have developed a vicious practice of considering a transaction that is actually void as voidable. This makes it possible to reduce the statute of limitations to one year and reject the lion's share of claims.

Let's look at an example of calculating the statute of limitations for a contested will:

The plaintiff began to challenge the will for the apartment a year and a half after the opening of the inheritance, which he could not have known about (no one informed him about the death of the testator, since his whereabouts were unknown; the plaintiff was seriously ill, was considered missing, etc.) .

The filing of the claim occurred eight months after the testamentary document came into force. The limitation period is not 18, but 10 months.

The court does not have the right to reject the claim on the basis of the expiration of the statute of limitations (subject to supporting facts that the heir by law really could not have known about the opening of the inheritance).

Is it possible to challenge a will for an apartment with partial legal capacity?

Claims by heirs at law against heirs under a will often center on the drafting of a document by a person wholly or partially incapacitated.

Based on Art. 176 of the Civil Code of the Russian Federation, all property transactions (including a will) can be carried out by a person with limited legal capacity only with the consent of the trustee. That is, the very fact of drawing up and approving a will by a partially capable person without a trustee is already a violation. If this happens, the trustee must file a claim for invalidity of the will.

In the absence of a trustee, courts usually rely on the results of a forensic examination to determine what state the testator was in when the will was made. The difficulty of such court cases is that to establish the fact of the testator’s incapacity (if the person is not recognized as such, on the basis of Art.

 29 of the Civil Code of the Russian Federation) precisely at the time of signing the will is very difficult. Even if the testator suffered from dementia or mental disorders, these diseases have two phases - enlightenment and exacerbation. Sometimes even experts are unable to check which of them the deceased was in when he signed the document.

In half of inheritance claims, the plaintiffs themselves are to blame

Often heirs remember their relatives and friends too late. And most of all they are concerned with the question of whether it is possible to challenge a will after the death of the testator. In fact, the lawsuit should be filed against the plaintiffs themselves - for the fact that they abandoned an old and helpless man alone, and he was forced to turn to strangers for help.

This is a real violation of the foundations of morality and ethics, which will not be written about in the codes. If you have already done this, then it is better not to loudly announce yourself after 30-40 years of absence in order to contest the will. Give up the property to someone who really helped your parent (grandfather, grandmother) in need of care, even if not disinterestedly.

( Loading…

Is it possible to challenge an inheritance in court?

Inheritance of the property of the deceased can be carried out according to the rules of law or according to a will. The last option has unconditional priority according to the Civil Code. At the same time, quite often it is the will that becomes the subject of inheritance disputes and the relatives of the testator try to annul it.

Basically, they appeal to the fact that the will was drawn up under pressure/threats/blackmail or the testator was not aware of his actions, or that the testamentary document did not meet civil law requirements.

If relatives manage to revoke the will, the inheritance will be distributed according to legal norms.

When inheriting by law, the property of the deceased is distributed among his relatives, taking into account the order of priority. Thus, the primary heirs include parents, spouses and children. The second line consists of his grandparents and brothers/sisters.

In total, the Civil Code provided for eight such queues. The right to participate in the distribution of property of heirs of the second category arises only if there are no applicants of the first priority, etc.

The inheritance is divided among all heirs in the same order in equal parts.

This procedure for distributing property makes it practically impossible to challenge an inheritance without a will under the law, unlike situations where this document was left by the testator during his lifetime.

Regardless of the order of inheritance in which the challenge is carried out, both procedures are carried out on general principles:

• Cancellation is only possible through court. There is no point in contacting a notary for this, since he does not have the proper powers;
• To support your position, you must provide all evidence and documents;
• The grounds for cancellation must be legal. This principle has nuances that are not always taken into account. For example, to recognize a person as unworthy, it is necessary to confirm his threats in order to receive an inheritance. If threats were used for other reasons, this cannot be grounds for deprivation of property;
• The case can be initiated by interested parties, that is, legal heirs;
• After a positive decision is made, the property is distributed among the heirs whose rights are not disputed;
• The person who is the subject of the annulment case can also defend his or her rights. For example, the legal heirs presented evidence showing that the testator was incompetent. The applicant may present evidence in court about the person’s legal capacity.

The procedure takes 3 years. However, in order to successfully complete the case, it is recommended to go to court “without delay”. In this case, it will be easier to prove your rights and redistribute property.

Which heir can challenge the inheritance?

Who has the right to challenge a will?

It is important to establish that it is impossible for any person to simply declare the will invalid if it seems to him unfair in relation to any of the heirs.

Again, we have to remember: a will is an agreement establishing a one-sided transaction. And the agreement can be challenged by those whose rights are violated in it.

If there are no heirs of the first stage, the right to challenge goes to the heirs of the second stage:

• brothers and sisters;
• grandparents.

In the absence of these heirs - the third stage and subsequent ones.

In addition to them, people who have the right to an obligatory share can challenge the will of the testator if, according to the will, they receive nothing or the allocated share is less than the required one. Here we are talking about dependents who were supported by the testator.

• If the heir did not receive what he expected, or even what was promised to him by the testator orally, this is not yet a basis for the court.
• Therefore, before drawing up a statement of claim, it is necessary to assess whether there are really legal grounds for initiating a case to declare the will void or to challenge it entirely in one of its parts.
• 1. Errors in design:

• the document is not certified by a notary, as required by law, there is no signature of the testator or witnesses (if the circumstances of writing and certification require it);
• persons who did not have the right to do so were witnesses or signed the will instead of the testator;
• lack of place and date of composition.

2. Doubts about the handwriting and signing of a closed will by the testator.

Small typos and minor violations do not invalidate the document. Usually the court recognizes them as such if they do not interfere with the correct understanding of the will of the testator.

You can also challenge a will if the potential heir can present facts confirming that:

• at the time of signing, the testator did not understand what was happening or could not be fully responsible for his actions, since he was under the influence of alcohol, drugs, psychotropic substances (including medications), suffered from mental illness, senile dementia (as a result of which he was partially or completely incompetent);
• signed under the influence of threats, psychological pressure, blackmail (and therefore the will does not reflect the real will of the testator);
• unworthy persons were declared heirs.

Recognition of the invalidity of a will does not in any way affect the right of the persons mentioned in it to inherit according to the law according to the principle of priority.

You can protect your right to an inheritance share by challenging the inheritance in court only after the death of the testator or recognition of him as deceased.

Those persons whose rights and legitimate interests were violated during the division of property have the right to challenge the inheritance:

• the heir of the degree of kinship who, in order of priority, could claim, in accordance with the law, the share of the deceased if he did not leave a will;
• a co-owner of real estate who is against the transfer of all property rights to the property by the testator;
• other persons whose property the deceased disposed of in violation of the law.

Let's look at these categories using examples:

• If the deceased left a daughter, and a will with violations was drawn up for a distant relative, then she can challenge the document. Heirs of the next degree of kinship, for example, brothers, uncles and aunts, do not have this right;
• The deceased and his wife owned a residential building on an equal basis. If the will specifies the inheritance of the entire living space, and not just part of it, then the spouse has the right to challenge the document;
• Before his death, the person managed to draw up a contract for the sale and purchase of his real estate, but the transaction did not take place and the information was not entered into the register, since there was no transfer of funds. In this case, the property appears in the will as an inheritance share, and the heirs filed a claim for compulsory registration of the property against the second party to the agreement. In order to protect his rights, a person has the right to protest this will.

Article 1131 of the Civil Code of the Russian Federation does not regulate the exact list of persons who may initiate a claim to challenge a will. The plaintiff in the process can be any entity whose rights or legitimate interests are violated by the terms of the testamentary disposition. For this reason, it is necessary to determine which persons' rights and interests may be affected or infringed upon by the terms of the will.

When determining the circle of persons who have the right to challenge a will, the relatives of the deceased are identified. In the absence of a testamentary form, they enter into inheritance according to the law, and the first heirs include the children, spouse and parents of the deceased. It is these categories of citizens who may suffer significantly if property assets are bequeathed to strangers.

Based on the practical analysis of Article 1131 of the Civil Code of the Russian Federation, interested parties in challenging a will may be:

• relatives of the deceased citizen who are not included in the contents of the will - in this case, the heirs of the first priority will be able to apply for a compulsory share only upon confirmation of incapacity for work, and the amount of the inheritance will not exceed half the share according to the law;
• persons whose property was illegally included in the contents of the inheritance - for example, if the testator disposed of things or objects belonging to another owner;
• potential recipients of property by law or will, if the actions of other persons establish grounds for recognizing them as unworthy heirs.

Not only a person who was illegally deprived of property when drawing up a will can go to court. Situations often arise when the property included in the contents of the will was sold by the owner before his death. In this case, the heirs do not acquire any rights to other people's things, objects or objects.

Let's consider the list of grounds under which interested parties can initiate legal proceedings to challenge a will.

Our lawyers know the answer to your question

1. If you want to know
2. how to solve your problem
3. , That
4. ask
5. our duty officer about this
6. lawyer online
7. . It's fast, convenient and
8. for free
9. !

or by phone:

• Moscow and region: 7-499-938-54-25

Judicial practice of challenging wills

Judicial practice regarding the invalidation of wills clearly describes life situations that will make it possible for many people to discover answers to their own problems.

The process of challenging wills in judicial practice is associated with three main problems , which relate to:

• parties to the process;
• grounds for recognizing the invalidity of a testamentary document;
• determining and applying the consequences of the invalidity of a will.

Problems arising when challenging a will related to the parties to the process

The first problem is one of the most insignificant , because the plaintiff is the person who would have inherited all the property in accordance with the law if there had been no will or it had been declared invalid.

In accordance with paragraph 2 of Article 1131 of the Civil Code (Civil Code) of the Russian Federation), a will can be declared invalid in court proceedings upon the claim of a person whose rights and legitimate interests were grossly violated by this document.

It is also necessary to remember that until the moment of discovery of the heritage has occurred, it is not possible , which is expressly stated in Part 2, Clause 2, Art. 1131 Civil Code of the Russian Federation. This is understandable, since until the opening of the heritage there is no process of succession, and at the same time there is no object (property) of protection.

In judicial practice, citizens who file lawsuits demanding that a will be invalidated act as proper plaintiffs in the process - that is, persons who belong to the circle of heirs by law, and who would be called upon to inherit in the absence of a document. The plaintiff may also be a person who directly relates to the will as an heir indicated in it, and who can cancel or change it in the process of challenging it.

not all legal heirs can act as plaintiffs in claims to invalidate a will , but only those whose priority is closer to the first .

But it is necessary to take into account that a claim filed by heirs of the second to fourth order will not be satisfied by the court even if there are significant grounds, if at the time of opening the document there are heirs of the first order who can enter into inheritance rights both under the contested will and under the law.

More often in judicial practice there are cases when courts unreasonably limit the circle of defendants only to persons who are indicated by the heirs in the contested will. It may also include so-called legatees - persons who are not included in the will, and executors of the will under certain conditions.

An analysis of court decisions in these cases indicates another common mistake, which is associated with the involvement of the notary who certified the testamentary document as a party to the defendant in legal proceedings .

On the one hand, a notary cannot act as a defendant in court, since he has no material and legal relations with the plaintiff and is not the subject of the dispute itself. On the other hand, if the plaintiff indicated the notary in his statement of claim as a defendant in the case, then he will appear in court in this capacity.

Example Citizen L. filed a lawsuit in which she demanded that the will of her husband, citizen R., be declared invalid. The reason (ground) for this was that her husband, when drawing up a will with a notary, was in an inadequate state. At that time, citizen R. was being treated for a mental disorder in a specialized clinic, which was caused by constant consumption of alcoholic beverages. Sometimes he was sent home on weekends. Taking advantage of this, he could not resist, bought alcohol and drank, which was strictly forbidden to him. Then he went to the first notary office he came across, presented his passport and documents for the apartment, which was registered in his name, and drew up a will for his mistress, citizen A., with which he bequeathed to her a shared two-room apartment. In this regard, citizen L. asks the court to declare her husband’s will invalid.

In this case, it will be very easy for citizen L. to present to the court the grounds as evidence for making an appropriate decision.

Since her husband was undergoing inpatient treatment in a specialized clinic, it is necessary to request the necessary documents (certificates) confirming his possible inadequate conditions.

Article 177 of the Civil Code of the Russian Federation provides for general grounds under which a court may invalidate a document. These include, in particular, a will made by a citizen who is unable to direct his actions and understand their meaning.

Guided by the norms of the Civil Code, the court recognizes the will made by citizen R. as invalid due to its insignificance. In turn, citizen L., if her husband dies, will be called upon to inherit by law in the order of priority, and she belongs to the first.

Typical problems associated with the grounds for invalidating wills

The most common reasons for invalidating a document are defects in form and subjective aspect .

The issue of the testator's incapacity in these cases comes first . In practice, both the courts, the notary, and lawyers recognize that such cases are the most common.

On June 5, 2010 , changes were made to the legislation on notaries; it acquired clearer rules, which stipulate that when concluding transactions, notaries are obliged to ascertain the legal capacity of citizens. It should be noted that the notary is also quite limited in his ability to verify the ability of the testator at the time of concluding the transaction to understand the meaning of his actions and manage them.

A transaction made by an incapacitated person will most likely be declared invalid upon the claim of persons whose rights and interests were grossly violated as a result of the preparation of the document (Article 177 of the Civil Code of the Russian Federation).

Challenging on this basis, as already noted, is the most common, because the mental state of the testator at the time of drawing up the will can only be determined by making a post-mortem forensic psychological examination.

The Supreme Court of the Russian Federation has more than once discussed the issue of the validity of the document and how the examination can influence the court’s decision. In one of the acts in such a case, the court concluded that the power of attorney was invalid and the will was recognized as valid, both transactions being carried out by the same citizen .

When assessing the expert’s conclusion, an important factor is that “with the greatest degree of probability it can be assumed” that the citizen could not understand the meaning of his actions and could not control them at the time of drawing up the document.

The Supreme Court does not support the decision of the trial court, since the latter unreasonably ordered a comprehensive psychological examination to obtain categorical conclusions.

The court, which has examined numerous and contradictory evidence regarding the understanding of actions and the ability to direct them by the testator, may consider insufficient and send the case for re-examination (findings of the Sverdlovsk Regional Court of August 14, 2008 in case No. 33 -6434/2008).

There is a need to dwell on the consideration of problems associated with the grounds that relate to non-compliance with the provisions of Art. 1125 of the Civil Code of the Russian Federation. A will is invalid if , for example, the requirements for its form are not met . These include the following violations.

• The will was written down by a notary from the words of the citizen who bequeathed the property, and before signing it was not read by him or was not read by a notary , if the testator could not independently familiarize himself with the final text, and the reason for this was not indicated, which contradicts paragraph 2 of Art. 1125 of the Civil Code of the Russian Federation.
• The will was not signed by the testator with his own hand and the reasons why he could not sign the document on his own were not indicated; or the name, surname, patronymic or place of residence of the person who, at his request, signed the will in his place is not indicated, which is contrary to paragraph 3 of Art. 1125 of the Civil Code of the Russian Federation.
• The presence at the signing of a document as a witness of a person whose rights to property relate to this document, which contradicts the requirements of paragraph 2 of Article 1124 of the Civil Code of the Russian Federation.

As for these violations, in judicial practice great importance is attached to fulfilling the requirements arising from the norms of paragraphs 2 and 3 of Art. 1125 of the Civil Code of the Russian Federation.

doubtful if they are not personally signed by the testator or are not read to him before signing.

This article also does not exclude, but on the contrary, accepts the presence of a witness when drawing up such a will.

There are cases when the court does not consider some of these violations to be a reason to invalidate a document.

Clause 3 of Art.

1131 of the Civil Code of the Russian Federation directly states that minor violations in the preparation of a document, its signing and certification cannot serve as a basis for recognizing the invalidity of the document , since they do not affect the understanding of the will of the testator. But this rule of law does not specify which violations can be considered minor. Therefore, in each specific case, the courts independently analyze and establish the fact of a violation. This is clear from their judicial acts.

Example

In one of the cases considered by the court, the following was stated: the arguments of the cassation statement that the disputed document (testament) is an invalid transaction, since it contains corrections, are not grounds for declaring the document invalid.

These corrections do not in any way affect the will of the testator, since none of those citizens who were questioned in the trial of witnesses indicated that he did not want to bequeath his property to the defendant (ruling of the regional court in the city of Chelyabinsk dated March 14, 2011 according to case No. 33-2744/2011).

This approach is almost impossible to agree with, since the testimony of witnesses concerned the intentions of the testator and was used by the court to interpret the document and in deciding the dispute about the validity of the document. The court did not give any assessment to the cassator’s arguments that, due to corrections in the will, it was unclear what part of the residential premises the testator was ready to dispose of.

Problems that arise in connection with determining the consequences of invalidity of wills

, defendants in claims to invalidate wills most often recognize heirs under wills . There are many acts in the courts that indicate disputes on such issues and describe solutions to these disputes. The list of relevant acts is very long.

To justify the above, the following point must be taken into account: if the will is nevertheless declared invalid, this will mean that the parties indicated in it are not called upon to receive the inheritance . Therefore, the statement of claim demanding that the will be invalidated is aimed at refuting the material and property rights of citizens specified in a specific will and citizens who refused to receive property.

In the Civil Procedure Code (Civil Procedure Code) of the Russian Federation, Article 30 allows for the filing of a statement of claim by creditors of bequeathed property in the period until the acceptance of the inheritance. In this case, with some conventions, the estate is designated as one defendant .

So many conventions lead to the fact that the creditor of the inherited property files a claim precisely in the period before the acceptance of the inheritance by the heirs by will or by law only so that the statute of limitations is not missed, and the court, in turn, postpones consideration of the case until the day when the inheritance is opened by the heirs by law or by covenant in accordance with paragraph 3 of Art. 1175 of the Civil Code of the Russian Federation.

The proposed procedure in this article is carried out in such a way that the statement of claim is presented (conditionally) to the estate, and the legal process is suspended until the inheritance is accepted . This procedure does not apply in cases where it is necessary to resolve the controversial issue of the right to be called upon to inherit.

Succession by the defendant may entail the disposal of property included in the estate, deterioration or destruction of this property . Here the rights and interests of the parties and third parties in the case may be violated.

To date, there are no special rules in procedural legislation that would regulate the filing of a claim in relation to a heritage that is being discovered but not yet accepted. This is stated in Art. 1131 of the Civil Code of the Russian Federation, according to which, only the heir under the disputed document is the defendant .

Question

The testator left a will, according to which he transfers all his property to a stranger. Citizen K. filed a claim in court to declare the document invalid. She belongs to the heiress of the third stage.

She did not have any evidence that would confirm that this will somehow violated her interests and rights protected by law, and she did not provide it to the court.

At the same time, claims were brought forward by the heirs of the first and second stages, citing the fact that the testator was in such poor condition when drawing up the document that he did not understand what he was doing. She is interested in the question, what decision will the court make in her dispute? Answer

The court will refuse citizen K.’s claim for several reasons:

• because there are heirs of the first order;
• since citizen K. did not present to the court evidence that confirms that this document violated her rights or legitimate interests and that if the document was declared invalid, she could be called to inherit simultaneously with the heirs of the first priority.

Question

Citizen O. was the executor of the will because his friend, citizen B., was incompetent and could not write or sign the will on his own. Before signing the will, the notary did not read it to the testator, since he could not do this on his own.

After the death of the testator, some of the heirs did not agree with the contents of the will. The witness confirmed that he signed the will at the request of a friend. But since it was not read out by the notary before signing, he did not know about its final content.

What should the relatives of the testator do in this case and what decision will the court make in this matter? Answer In this case, the notary violated the norms specified in paragraph 2 of Art.

Such a document is subject to challenge in court, since there is every indication that the will of the testator to dispose of his property was violated.

In court proceedings, in this case, the document will be declared invalid due to its insignificance, and relatives will be able to be called upon to inherit by law.

Challenging a will: judicial practice

As notarial and judicial practice shows, the presence of a properly drawn up will does not guarantee the fulfillment of the will of the testator. Claims by heirs to challenge a will are quite common.

Reasons for contestation

The motives of those who consider themselves unfairly treated during the division of the inheritance are understandable. If the will is declared invalid, then the provisions of the law come into force, according to which all property can be divided equally between the heirs of the corresponding order. They especially often try to challenge the will of an apartment or other real estate.

Since a will is recognized as one of the types of transactions, according to civil law, it may be invalid. There are only two types of such transactions: void and voidable. Only a court can draw a conclusion about the invalidity of a will upon the application of an heir who wishes to challenge it. The testator can simply change his last will during his lifetime.

The reasons for challenging wills encountered in judicial practice most often include:

• non-compliance of the document with the requirements of the law (lack of expression of will, signature, identification, etc.);
• doubts about the adequacy of the testator at the time of writing the will;
• personal interest of the notary;
• doubts about the validity of the document (for example, if the archive is lost).

Advice: if you have any doubts about the authenticity of a document, you should seek a handwriting examination to prove its authenticity.

Sometimes violations are so obvious that even judicial recognition of this fact is not required. A will will be void, that is, absolutely invalid, if:

• it was committed by an incapacitated person or through a representative;
• the written form is not followed;
• there are no necessary signatures and certifications;
• The will of several persons is expressed (joint will).

In all other cases, a court recognition of the document as invalid is required. But in order for the plaintiff to actually accept the inheritance, he will need to present serious evidence. For example, the fact that the testator did not realize the consequences of his actions or signed away the apartment and other property under the influence of threats and deception.

Right to mandatory share

It is quite easy to challenge a will in cases where its execution actually violates the rights of the relatives of the deceased. The law establishes categories of heirs who have the right to an obligatory share in the inheritance (Article 1149 of the Civil Code of the Russian Federation). These are the children of the testator who are minors at the time of opening the inheritance, as well as family members who are disabled for various reasons:

• spouse;
• parents;
• adult children;
• dependents.

Allocation to them of half of what they would have inherited by law is mandatory, regardless of the text of the will. Even if this reduces the shares of those mentioned in the document.

However, the court may refuse to award a mandatory share of the inheritance. But only if we are talking about an apartment where the heir under the will lives. And only when the allocation of a mandatory share makes it impossible to transfer this property to the person to whom it was bequeathed.

Illness of the testator

Most often in judicial practice one has to deal with a will being challenged on the grounds that at the time of signing it, the testator was in an inadequate mental state and did not understand what he was doing. In this case, we are not talking about a situation where a person is declared incompetent and there is a court decision establishing this fact.

The main evidence of the party insisting on the invalidity of the will will be medical documents. You can submit certificates, extracts from a medical record, etc., confirming the presence of serious diseases that can cause temporary clouding of the mind. Or prescribing drugs that affect brain activity.

The court, when making a decision, will be guided by the results of a posthumous medical examination, which will establish the possibility that the testator, when distributing the inheritance, was not able to adequately assess his actions and their consequences. Its implementation is complicated by the fact that the testator can no longer confirm or refute the information.

Advice: a medical report is strong evidence, but not sufficient to challenge the will of the deceased. Testimony from those who communicated with the testator over a long period of time also plays a role. This can be not only relatives, but also social workers, neighbors, and employees of a medical institution.

Coercion, threats, deception

It is quite difficult to prove the invalidity of a will drawn up under duress. But such cases still occur in judicial practice. Moreover, according to the results of the court, relatives who intimidated or deceived the testator can be recognized as unworthy heirs with all the ensuing consequences.

Since there is most often no documentary evidence of a threat to life and health or grounds for misconception, the main evidence from the heirs will be testimony. The consideration of such cases can take quite a long time, but it is not always possible to challenge a will, and in the end it will remain unchanged.

Real Estate Inheritance

The most expensive, and therefore the most attractive inheritance is an apartment or any other real estate. The desire to challenge the will of a deceased relative and cancel this particular part of the will most often brings heirs to court. The reason is quite simple.

Inheritance by law of an indivisible thing, for example, an apartment, has a number of features. Thus, its co-owner, declared an heir, can claim priority to receive the testator's share. Those who lived in this apartment and do not have other housing also have priority. It is beneficial for them to challenge the will in order to exercise their right.

You just have to remember two important points:

• in addition to rights, responsibilities are transferred along with the real estate, for example, to pay utility bills if they were allowed by the testator;
• Heirs become owners only after undergoing mandatory state registration.