Recognizing the will as invalid.

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Kaploukh Victoria

Attorney

Ukraine / Kharkiv

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Publication date: 24.05.2024

Annulment of a will is a legal process whereby a will is declared to have no legal effect. This can happen due to various reasons related to the violation of legal requirements for making a will, as well as other circumstances that affect the validity of this document.

Grounds for invalidating a will.

• 1. Non-observance of the form and procedure of making a will:
  The will must be made in writing and signed by the testator. If the will is made in a simple written form, it must be signed by the testator himself.
  Notarization of the will is mandatory, unless the will was made in extraordinary circumstances.
  2. Lack of legal capacity of the testator:
  The testator must be legally competent at the time of making the will. If it is proven that the testator was incapacitated or limited in capacity, the will may be declared invalid.
  3. Making a will under the influence of error, deception, violence or abuse of trust:
  If the will was made under the influence of these factors, it can be declared invalid.
  4. Absence of a personal signature of the testator:
  If the will is not personally signed by the testator and does not contain the proper signature of an authorized person (if this is allowed by law), it may be declared invalid.

The procedure for declaring a will invalid.

• 1. Appeal to the court:
  A person who has reason to consider the will invalid must apply to the court with the appropriate claim.
  The statement of claim must contain justification of the grounds for declaring the will invalid and evidence confirming these grounds.
• 2. Consideration of the case in court:
  The court examines the presented evidence and hears the witnesses. Important evidence can be medical documents, notary statements, witness statements, etc.
  3. Making a decision:
  Based on the examined evidence, the court makes a decision to declare the will invalid or reject the claim.

Наслідки визнання заповіту недійсним.

• • Recognizing a will as invalid means that it loses legal force from the moment it is made.
  • If the will is declared invalid, the inheritance is carried out according to the law, if there is no other valid will.

According to Ukrainian legislation, questions about the invalidity of the will can be raised not only by the persons who accepted the inheritance, but also by other interested persons.

• Interested persons.
  1. Legal heirs:
  • Persons entitled to inheritance by law in the absence of a will. These can be family members, close relatives, children, parents, spouses and others.
  2. Heirs under another will:
  • If there is another will which they believe is valid and which takes precedence over the one being contested.
  3. Other interested persons:
  • Persons who have a direct material or non-material interest in the outcome of the case. These may be creditors of the testator or other persons who believe that their rights have been violated due to an invalid will.

Appeal procedure.

• 1. Filing a lawsuit in court:
  • The interested person must submit a claim to the court to declare the will invalid. The statement of claim must specify the grounds on which the claim of invalidity of the will is based, as well as provide relevant evidence.
  2. Examination of the evidence:
  • The court examines the provided evidence, listens to witnesses and other participants in the process who have information about the case.
  3. Court decision:
  • The court renders a decision based on the examined evidence and the heard parties. If the court declares the will invalid, it loses legal force.

In the case of contesting the invalidity of the will, the proper defendant is usually the person (or persons) who made the will. In this case, the defendant will be the testator himself, who made the will. If the testator has already died, then the defendant may be his heirs or persons managing the estate (if any). In either case, the person contesting the will files a lawsuit, and the defendant in that lawsuit will be the person or persons they believe are responsible for the will they believe is invalid.

"Disputed will" -

• it is a will in respect of which legal proceedings have been initiated or a claim for its invalidity has been filed. If a will becomes the subject of legal proceedings, it can be called "contested". Disputing the will may lead to a court proceeding, where its legality and compliance with the requirements of the law will be determined.
• 
  In the case of disputing the will, the person or persons who consider the will to be invalid will be the party filing the claim (plaintiff). They can be legal heirs or other persons who have an interest in the inheritance.
  The defendant in the case will be the person who made the will or his heirs, if the will was made after the death of the testator. In the event that the heir considers the will to be invalid, he can file a lawsuit in court demanding its cancellation or invalidation.
• 
  The decision of the court case on the challenge of the will usually takes place on the basis of the evidence presented by the parties, as well as in compliance with the requirements of the law. If the court decides to declare the will invalid, inheritance rights are distributed according to other legal wills or according to the law on intestate succession.

"Worthless Testament" -

• can be used to describe a will that has some defect or does not meet certain requirements, making it inadmissible or ineffective. This may be due to various reasons, such as an invalid form of drafting, the absence of certain mandatory elements, or violations of the rules relating to the drafting of a will.

For example, a will can be declared invalid if:

• 1. Form and procedure not followed: The will must be made in writing and signed by the testator in accordance with the requirements of the law. If these requirements are not met, the will may be declared null and void.
  2. Incapacity of the testator: If the testator was incapacitated at the time of the making of the will, this may render the will null and void.
  3. Making a will under the influence of mistake, fraud or violence: If it is proved that the will was made under the influence of these factors, it can be declared null and void.
  4. Violation of the rights of the heirs or other interested persons: If the will violates the rights of the heirs or other interested persons, it may be declared null and void.
  5. Other legal grounds: Other circumstances that are established by law and may lead to the will being declared null and void.