Is it possible to challenge a will for an apartment after the death of the testator: how, who and in what case

Author Peter Deryabin

Updated: 04/27/2020 21:08 Published: 02/12/2019 15:32

Real estate

Property disputes have always been the most difficult part of jurisprudence. The distribution of property under a will is solely the desire of its owner, but sometimes his decisions, for various reasons, seem unfair to the persons mentioned in the document.

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A will is traditionally considered immutable, but is it possible to challenge it?

Who has the right to challenge a will for inheritance?

In Art.
1118 of the Civil Code of the Russian Federation establishes general provisions regarding the drawing up of a will. The legislative act states that the document is a unilateral transaction that comes into force only after the death of the citizen (opening of inheritance). Before this, it will not be possible to challenge the will. Certificate! The document is drawn up personally by the citizen. Its registration through an intermediary is not allowed. In accordance with the law (Article 1131 of the Civil Code of the Russian Federation), a will is declared invalid by a court decision if the rights of the interested person were affected.

A statement of claim is filed in court by those who can challenge the document:

spouse;
children;
parents;
brothers and sisters, etc.

If at the time of a citizen’s death there are no heirs of the first line, then relatives of the second or subsequent lines of inheritance, including grandchildren , aunts, uncles, cousins, etc., have the right to challenge the will.

Download the statement of claim for invalidation of the will

What's the difficulty?

To draw up a will, the owner of the property only needs the passport data of the persons to whom he wishes to leave an inheritance.

Property does not have to be bequeathed in full, and it does not have to be distributed among relatives - strangers, including those without citizenship or registration, can also be mentioned in the will.

How difficult is it to challenge a will? The fact is that no one has the right to influence the owner when distributing the inheritance, otherwise such a will is considered invalid. The testator can exclude even the closest relatives from the document without giving reasons.

However, disadvantaged heirs still have the right to challenge the terms of the will.

Mandatory share in inheritance

In accordance with Art.
1149 of the Civil Code of the Russian Federation, certain categories of relatives of the deceased have the right to an obligatory share of the inheritance, regardless of whether they are mentioned in the will or not. These include:

minor children;
incapacitated parents;
disabled spouses;
dependents of the deceased.

They can claim at least half of the property, which would have been registered in their name upon inheritance by law. If the heirs of the obligatory share are not indicated in the will, then they can challenge it, since their rights are violated.

How to confirm the invalidity of a will

The invalidity of the will is confirmed by documents and with the help of oral testimony of persons not interested in the outcome of the case. Interested citizens are also surveyed, but it is the testimony of neighbors, work colleagues, representatives of authorized bodies, and medical institutions that are of paramount importance.

Expert opinion

Klimov Yaroslav

More than 12 years in real estate, higher legal education (Russian Academy of Justice)

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Thus, trying to challenge a document drawn up by an incapacitated testator, a potential heir, deprived of the right to inherit precisely by a will, can turn to neighbors and acquaintances so that they confirm the fact of incapacity in writing or orally. Naturally, witness testimony must be supported by medical certificates. If there are no witnesses, then the plaintiff has the right to demand a special examination that can confirm or refute the assumption that the will is void because it was drawn up by an unhealthy person who is not capable of being responsible for his actions. The defendant in the case may also insist on the creation of an expert commission. The list of questions that the commission will have to answer can be drawn up by both the plaintiff and the defendant, or both of them.

To confirm the invalidity of a will drawn up by a minor, it is sufficient to provide the court with the birth certificate of the testator. If the document does not contain the required signatures, you will need to first identify why they are not there. If the will was drawn up secretly and was not certified by a notary, its authenticity is verified through a handwriting examination.

Important! The court is not obliged to look for confirmation of the invalidity of the will, therefore all actions related to the collection of evidentiary evidence necessary to seize the property fall on the shoulders of the plaintiff.

Reasons

The relatives of the testator may have a question in what cases the last expression of will can be completely or partially canceled.
A will is considered void on the following grounds:

at the time of filling out the document, the testator was declared incompetent;
the closed will was handed over to an official without witnesses;
the document is filled out not by the testator, but by his representative;
Gross errors were discovered in the execution of the will.

The court recognizes the document as invalid in the presence of such circumstances as:

the testator did not give an account of his actions, was under the influence of psychotropic drugs, narcotic substances;
the citizen suffered from a serious mental illness;
the signatures on the document are forged;
the will was made under physical or moral pressure.

To identify mental disorders at the time of registration of the document, a post-mortem forensic psychiatric examination may be appointed.

Required documents

The requirement to invalidate a will requires documentary support.

To do this, the court must provide:
the applicant’s passport and its copies (instead of a passport, you can use any document that can be used to confirm the identity of the plaintiff);
marriage and birth certificates (confirms relationship);
certificate of family composition;
certificate from place of residence;
document on adoption (if it was made);
a certificate from the medical institution where the testator was treated;
a petition to call specific witnesses, to attach previously made court decisions to the case, or to request that collected evidence be included in the case;
power of attorney, if the applicant cannot or does not want to represent his own interests independently (the power of attorney can be issued to any citizen).

Important! Copies of all documents are attached to the claim, but the originals may be required during the court hearing. The list of required papers can be expanded at the request of the court or the applicant himself. Some documents are provided by public and private institutions solely at the request of the court (a psychologist or attending physician may refuse to provide the information the applicant needs about the testator’s health status), therefore, the plaintiff has the right to attach to the application a petition for the court to request the documents he needs.

Limitation periods

Often, heirs have a question about how long it takes to challenge a citizen’s last will.
Since drawing up a will is considered a unilateral transaction, the provisions of Art. 181 Civil Code of the Russian Federation. In accordance with the legislative act, the following limitation periods are established:

if there are grounds for recognizing the will as void – 3 years;
to challenge a document – 1 year.

It is recommended to file a claim in court within 6 months after the opening of the case, until the notary issues a certificate of inheritance to the persons mentioned in the will.

Sample statement of claim

In a claim containing a request to recognize the will of the deceased in relation to his own property as void, the following is indicated:

name of the court, its full address, full name of the judge;
Full name of the plaintiff and defendant in the case (this can be the heir under the will or the notary who certified the document);
applicant's contact details.

The following is the header of the document. It is placed at the top of the sheet, written on the left side.

All claims and demands are stated in the main part of the claim after the word “Statement”, which is written under the heading in the center of the sheet.

The main part contains:
information about the plaintiff and defendant;
information that will help the court understand the essence of the claim (reason for filing, suspicion, assumption).

The document must indicate exactly what actions the plaintiff expects from the court.

Example. I, Ivantsov G.P., on the basis of the above claims, demand that the will of citizen P.D. Ivantsov, my father, be declared invalid. The property bequeathed by the deceased to his ex-wife, who is not a relative of mine, was not involved in caring for my father and has not appeared in our house for many years, please recognize it as my property.

After stating all the requirements, the applicant must list the names of the documents that he uses as evidence and attaches to the claim. The claim ends with the signature of the plaintiff (authorized representative) and the date of its preparation.

Recognition of heirs as unworthy

Relatives of the deceased may file a lawsuit to declare the heir unworthy.
This group includes the following categories (Article 1117 of the Civil Code of the Russian Federation):

citizens deprived of parental rights in relation to the testator;
persons who do not fulfill their obligations to the deceased, who were appointed by the court;
citizens who committed a crime against the testator.

Attention! You can challenge a document only after the death of the testator. If a will is drawn up by an incompetent citizen, it may be declared void.

Arbitrage practice

The presence of judicial practice further clarifies whether a will can be challenged in court. According to it, most of the statements of claim are aimed at refuting the legality of the inheritance document due to the incapacity of the testator or the presence of facts of violent coercion, misleading him, or threats. The reliability of such details of a case can rarely be confirmed in court.

How to Avoid Contestation

To ensure that the heirs under the will do not have unpleasant situations later, it is necessary to take its drafting seriously.
The document must be certified by a notary, otherwise it will not have legal force. The exception is when making a will in emergency circumstances. The rules for drawing up such a document are regulated by Art. 1129 of the Civil Code of the Russian Federation. If a citizen is in circumstances that threaten his life, then he can draw up a will in simple written form.

The document will have legal force only if it is certified by two witnesses. In extreme circumstances, joint wills of spouses and inheritance agreements cannot be drawn up.

In order to prevent a will being contested, the following measures must be taken:

When drawing up the last expression of will, the procedure specified in Art. 1124 Civil Code of the Russian Federation;
Before drawing up the document, it is recommended to take a certificate from a medical organization about your state of health, including the absence of mental illness;
a closed will must be handed over to a notary in the presence of witnesses.

Notary offices often have video surveillance. Camera recordings will help prove in court that the citizen was competent and of sound mind when expressing his last will.

Claim and evidence in court

It was noted above that who can challenge a will for a house. The initiator of the procedure, having grounds for going to court, prepares a statement of claim and a full package of related documents. The petition is submitted to the office of the city or district court, the jurisdiction of which extends to the territory where the inherited property is located. There are several options for filing documents to challenge the order of the last will of the deceased person. Namely:

sending a claim with evidence by post (all papers are submitted with copies approved by a notary, and must also be ordered);
personally to the office of the judicial authority (the claim is prepared in several copies, one of which remains with the applicant himself and on it the office employee puts a mark on the date of receipt of the petition);
through a representative (the notarized power of attorney reflects the right to file petitions in court on behalf of the principal).

After considering the petition, the court reserves the right to refuse to accept the claim. This can be done if the statement of claim is filed in violation of established norms. In particular, it is mandatory to display the following blocks of information in the appeal:

name and legal address of the judicial body authorized to consider claims;
personal information of the plaintiff;
name of the document, date and place of its preparation;
basic information about the dispute (information about the testator and claimants to the property, the emergence of grounds for opening inheritance proceedings, information about the notary);
the essence of the violations;
requirements section;
plaintiff's signature.

Important! There must be a list of all documents sent for consideration. The papers are numbered and stapled together.

Any materials confirming the plaintiff’s point of view can be used as evidence. In particular:

a copy of the will (the original remains in the custody of an authorized lawyer);
explanations of witnesses (relatives, family friends, officials);
financial documents (checks and receipts);
certificates from a psychiatrist or other doctor about the presence of disorders that affect the awareness of personal actions;
documents from the police about the commission of a crime against the testator or members of his family.

A child who has not yet been born can also act as heirs. In this case, the mother of the baby, after the birth of the baby, can go to court to restore the child’s rights to a share of the property.

Why do you need to challenge?

There are many reasons for disputes to arise, as a result of which heirs try to challenge the will of property after the death of the testator. Most often, this is a banal desire to get a larger share. And this is not surprising, because with the help of a will you can not only “bypass” close relatives, but also distribute valuables to complete strangers.

They also resort to contestation in cases where the testator is deceived or becomes a victim of a fraudster. This is especially true for older people, who become victims of manipulators especially easily. In this case, annulment will ensure that the property is distributed among those who truly deserve it.

Well, the last reason for cancellation is to eliminate some error. Notaries, although they are paper specialists, can also make mistakes. And if, when reading the will, it is discovered that the notary made a mistake, then it will not be possible to simply tear up the will and say that it did not exist - in any case, it will need to be canceled in court.

Civil Code on Inheritance by Will

There are two ways to enter into an inheritance, one of which is inheritance by will. According to Article 1119 of the Civil Code of the Russian Federation, any citizen has the right to independently determine the order of inheritance of his property after death. It is for this purpose that a will is drawn up, which represents the will of the giver.

Entry by will, like inheritance by law, is made in relation to all the property of the deceased (or that which was distributed by the giver) that belonged to the testator at the time of his death. Possessions that are not the property of the testator cannot be transferred.

According to Article 1130 of the Civil Code of the Russian Federation, a will can be drawn up an unlimited number of times, and can also be canceled or changed if necessary. Inheritance will be made according to the latest edition of the document.

A will is considered valid if it:

Written by a competent and adult citizen.
Has a notary or witness certificate.
Does not contradict the legislation of the Russian Federation.
It has a precise meaning and takes into account the interests of heirs with the right to an obligatory share.

It is possible to draw up both an open and closed will. According to Article 1126 of the Civil Code of the Russian Federation, the testator has the right not to disclose the terms of his will to anyone, including a notary. A document that was written by the testator in his own hand and placed in an envelope sealed by a lawyer is recognized as legal. His heirs will be able to find out how a citizen disposed of his property only upon joining.

The will must include the following information:

Information about the compiler: Full name, residential address and other personal data.
Conditions: text of the will and will of the testator.
Place and date of document preparation.
Personal signature of the testator and notarization.

A will cannot always be certified by a notary office. Article 1127 of the Civil Code of the Russian Federation establishes the procedure for considering documents that were drawn up by testators who are in medical institutions, nursing homes, or on long business trips. Doctors, directors of rehabilitation institutions, commanders of military units and ships, as well as expeditions can certify a will in such conditions.

Persons who are heirs or close relatives of the giver cannot certify a will.

In a will, the will of the testator can be expressed in relation to:

Determination of the circle of heirs and the size of their inheritance shares.
Definitions of the circle of those deprived of the right to join.
Conditions for receiving or distributing inheritance.
Executor of the will.

The procedure for entering into inheritance under a will will be the same as for legal inheritance. Applicants designated as the transferor must issue a certificate of inheritance at a notary's office or obtain permission to accept the property through a court procedure.

Acceptance of an inheritance under a will is possible only within six months from the date of death of the testator. The deadlines will be changed if the inheritance case is pending in court.

According to Article 1155 of the Civil Code of the Russian Federation, heirs who missed the deadline for accepting property can restore their rights to inheritance through the court or peacefully by concluding an agreement at a notary’s office.

What to do if one of the relatives of the deceased disagrees with his will? The law provides for the possibility of revoking a testamentary document, but a reason must be established for this. For example, the paper was drawn up by an incapacitated pensioner. We will tell you below about who can challenge an inheritance under a will and in what order to do so.

Will and heirs with obligatory share

Some owners, due to inattention, and sometimes on purpose, deprive the rights to property of their closest relative - spouse, son or daughter, parents. This happens quite often in life.

However, if a relative deprived of an inheritance has not reached the age of majority or is incapacitated (retired, disabled), he is necessarily entitled to a share of the inherited property. In reality, this part is less than desired - only half of the inheritance that he would have received by law. However, this is better than nothing at all.

Thus, minors or adult disabled children of the testator, needy mother/father, surviving spouse receive a part of the property if the right of compulsory share is violated when drawing up a will.

The court's decision. Consequences of refuting a will

If a will is declared invalid by a court decision (it does not matter - in whole or in part), this entails changes in the order of distribution of inherited property. Property is redistributed among heirs on the basis of a previous will (if one was drawn up) or on the basis of law.

It is possible that some heirs will not turn out to be heirs at all, and some heirs will have to return part of the property received. It is possible that the heirs deprived of inheritance will receive the property that they were deprived of by the refuted will.

How to prove the testator's incapacity?

The most common reason for lawsuits regarding the invalidity of a will is doubts about the testator’s capacity at the time of drawing up the document. However, the court has little doubt; it needs to collect evidence.

A person can be declared incompetent by a forensic medical examination, which can be carried out at the request of one of the parties - posthumously.

When conducting such an examination, forensic experts analyze:

medical diagnoses made to the testator before and after drawing up the document;
medications that he took during the period of interest to the court;
witness's testimonies.

The last item on this list is the most important, since not everyone is registered with a psycho-neurological dispensary or with a narcologist; it can be almost impossible to prove the fact of taking potent drugs, even if they were prescribed by a doctor.

But witnesses: neighbors, acquaintances, even casual visitors to a notary's office - can confirm that a person, for example, often forgot his first and last name, did not understand where he was, behaved aggressively or, conversely, depressed, fell into a stupor, suffered hysterical fits .

The procedure for proving the incapacity of a person who cannot be personally brought to a doctor and examined is a lengthy process with an unpredictable result. Therefore, heirs, when initiating a legal process to challenge a will on the basis of the incompetence of the testator, should be patient.

What are the legal deadlines for challenging a will?

Freedom of will cannot serve as a guarantee that relatives and other potential heirs, bypassed by the testator, will agree with his decision and will not challenge the document.
There are two options for dealing with a will as a type of transaction.

It can be declared void in the following cases:

irregularities in form;
incapacity of the testator;
contradictions between its provisions and laws.

The second option is to challenge the testator’s orders, which is possible if:

the use of psychological or physical pressure on the testator in order to influence the content of the document has been proven;
he acted under the influence of deception;
the will is written without the intention of leaving property (that is, it represents an imaginary transaction);
mandatory shares are not allocated;
the heir (or one of them) is considered unworthy.

A will can only be declared invalid when the inheritance is opened. Any actions to challenge it during the life of the testator are useless.

Procedure for challenging a will

If you intend to contest the will, follow the following algorithm:

Determine the basis for the challenge - what legal requirements were violated when drawing up the will?
Are you one of the people who has the right to challenge a will?
Make sure the statute of limitations has not yet expired;
Determine the jurisdiction - in which court will your claim be filed?
Prepare and file a lawsuit, attaching evidence that the will is controversial or null and void;
Take part in a court hearing;
If by a court decision the will is declared invalid in whole or in part, provide the document to the notary office at the place where the inheritance case is being conducted. The previously drawn up will will come into legal force, and in the absence of one, inheritance will take place according to the law.

Invalidation of a completed will: full or partial

After considering the case, the court may invalidate the testamentary document either in full or in a certain part. The latter case occurs when the invalidated parts do not interfere with the understanding of the main meaning conveyed by the testator in the inheritance document.

If the court decides that the entire document is invalid, then it loses its legal significance and the testator’s property is divided among the heirs according to the law, in accordance with the order. It may also be this: in addition to the invalid inheritance document, there is another will. In this case, the heirs receive their shares according to the latest document.

Legal requirements for drawing up a document

A will is an administrative document that implies a one-sided transaction. It is drawn up when a person wants to independently decide who will receive his property in the event of death. By will, property can be transferred to anyone, even a stranger, or organization. An alternative to this is inheritance by law, where close relatives have priority.

The law establishes the following requirements for a will:

Drawed up personally by the testator. Written by hand or typed on a computer. At the end of the document, the certifying signature of the originator must be placed. If a document is drawn up as a result of unforeseen events that threaten the life of the testator, only handwriting is allowed;
Certified by a notary. If a person is in a place where there is no notary office (prisons, military units, etc.), the document can be certified by an official who, according to the law, is assigned such duties. In case of natural disasters, wars and other emergency situations, it is allowed to issue a document without certification. In this case, it is drawn up in the presence of two witnesses, who must not be from among the heirs, and signed by them;
The testator must be an adult capable person who has an identity card. In some cases (marriage, entrepreneurial activity), the law recognizes persons who are 16 years old as legally capable. An adult can only be declared legally incompetent by a court order; its adequacy is assessed by a notary. Medical certificates confirming mental or physical health are not required. Although if there are doubts, for example due to the advanced age of the testator, it is recommended to provide them;