A will is a document according to which the right of ownership to the objects specified in the document passes from the testator to the established person or group of persons after the death of the testator. By issuing such a document, property can be inherited by people who are not relatives. Sometimes a will can be declared unlawful. In this article, we will look at how to challenge a will for an apartment.
Testament under the Civil Code
The norms of Chapter 61 of the Civil Code of the Russian Federation indicate that property can be inherited in two ways: by law and by will. According to the law, only persons who are relatives of a deceased person can get ownership of an apartment, a house, a car or something else. The circle of persons who can inherit property by testament is not limited by law, because it is the will of the person on whose behalf the document is drawn up. A will is set forth in free form. Typically, the text is drawn up in the presence of a notary, but there may be exceptions. For example, the document is signed by the head physician of the hospital or the head of the department where the person is lying. Can relatives challenge a will if they are sure of its illegality? Of course.
How to challenge a testament?
The law provides for the possibility of appealing against a will and declaring it invalid. According to Article 1131 of the Civil Code of the Russian Federation, recognition of a will invalid is possible after consideration of the claim of a person whose rights are infringed, in court. Russian law does not provide for other ways to invalidate this act.
In order to challenge a will in court, it is necessary to provide strong evidence that this document cannot be an expression of the real will of the testator. It is difficult to outline the list of possible evidence, because it all depends on specific circumstances.
When can a will be declared null and void?
The list of items in the presence of which it is possible to challenge a will for an apartment is clearly stipulated by law. It is stipulated that the documents drawn up are invalid:
- under severe pressure from others;
- incapacitated person;
- in circumstances when a person was forced to do this.
Errors in the text of the will - also an occasion to challenge the document
In what cases does the will dispute? For example, a notarized document does not comply with the approved form of a normative act of an individual nature.
In addition, a will cannot be legally binding if:
- certified by a person who is not entitled to do so by law;
- the date and place of its preparation are not indicated in the document;
- if one document is drawn up on behalf of two testaments;
- the number of witnesses who are required by law to draw up a will does not correspond to real provable facts;
- a notary puts a signature on a document because a person cannot sign because of health problems;
- non-observance of the principle of secrecy of the will.
Making a testament of a legally incompetent
Legal norms established that people suffering from certain ailments can be recognized as incapable. Based on practice, this status is mainly assigned to people with severe forms of mental illness, alcoholism, cerebral palsy or disorders of the musculoskeletal system, which completely make it impossible to move.In addition, it is believed that a legally incapable person cannot be fully responsible for his actions.
Consider an example. Often, elderly people suffer from severe mental illness. Suppose a testator has two children: a son and a daughter. For health reasons, by a court decision, such people of older people may be incapacitated. Without knowing this, a person goes to a notary public and draws up a will for his property to his son. Can a sister challenge a will? Of course, because the decision to declare the parent legally incompetent was made by the court before the will was drawn up.
If the client asks the lawyer: “Can I challenge the will of a person who was not deprived of legal capacity, but at the time of the transaction could not regulate his actions?”, The answer will be yes. Why? Each person under the pressure of circumstances from time to time may experience problems with the psyche. When the “adversary” set a goal to obtain a testament of property from the “victim”, he will use any methods, including psychological pressure. In this case, the proof process will be very difficult. It is necessary to attach the maximum number of medical reports to the case, and it is also possible to conduct a posthumous psychological examination. Also do not do without testimony. Witnesses may be relatives, doctors, social workers, acquaintances, and other people who have information on this case.
Paperwork under severe pressure from others
A will is the will of man. It’s hard to argue. But in some cases, the document is executed by force. We are not saying that this is physical violence. It may be mental. In any case, the will of man will be distorted. In the presence of such a situation, conditions are created when a person will be forced to sign a will, because they can take his life, cause some kind of injury or mental harm.
For example, a person is at home and a group of people comes to him. Pressure begins, a person is told that if he does not make a will in the name of a certain person, then some negative consequences will come. It is very difficult to withstand such pressure. A person goes and fulfills all the requirements, that is, signs a document. It is possible to challenge a will for an apartment, because in this case it was drawn up under the pressure of financially interested people.
Probate as needed
In what cases does the will dispute the will? Sometimes there are cases when the testator is forced to bequeath his property to other people. A potential testator finds himself in such living conditions when it is urgent to seek a way out of this situation. For example, an old person becomes very ill and cannot walk anymore. Children hire a nurse for a fee, because they do not have the opportunity to care for themselves. People do not expect a nurse to apply for a house (apartment). But carers gradually come to trust old people, do a lot for them.
Moreover, all this was for only one purpose: to issue a testament to a house (apartment). It happens that a person is getting worse. The nurse then says that he will work near the client only if he wills a will for real estate. The patient has no other choice. After the death of the patient, the heirs learn about the existence of a will. Of course, they know how to challenge a testament in accordance with the norms of the Civil Code of the Russian Federation. Not wanting to lose their legal right to inheritance and on the basis that the nurse received wages, they go to court. During the trial, it is established that the will was executed under pressure and in the conditions when the testator did not have the opportunity to refuse to sign the document. Such a transaction is expressly recognized as illegal.
Invalidity of the will due to lack of date and place of preparation in the document
The date of compilation under the laws of business is one of the signs of the validity of any document. The document is always registered in some magazines under a certain date. The date of preparation of the document, which is indicated in the will itself, and the date of registration of the will in notarial journals must coincide.
The absence of a date in a document may indicate several points:
- This is a mechanical typo when compiling a document;
- the will is forged.
Can relatives challenge a will in court if at least one of these items is present? Of course. To have an idea of the legal capacity of the testator, you need to know the date of the transaction. Without knowing it, it is impossible to guarantee the legality of the will.
The same can be said about information about the place of the will. The text should indicate the specific address where the legacy was concluded. This may be the home address of the client, the address of the hospital or notary's office.
The will is not certified
Can a sister challenge a will drawn up for a brother? Yes. One of the reasons why a will can be declared null and void is considered by law to be a violation of the procedure for certifying a document. In the standard procedure, the document is certified by the signature of a notary. But sometimes situations arise when other people assure the will. For example, if a person is in the hospital, the head doctor of the hospital can certify the document. A prerequisite for the validity of such a will is the presence of two witnesses, whose signatures must also be on it.
For example, a person who is over 80 years old has been hospitalized with severe injuries. The likelihood that he will live long with such injuries is small. It often happens that the elderly do not have children. Therefore, they can decide to bequeath all their property to the children of their close friend. There may not be the opportunity and time to call a notary to the hospital, so you need to find two witnesses, call the chief doctor - and the document will be drawn up. The testator has a sister. Can she challenge a will? Yes maybe. The only thing, in this case, she is unlikely to be able to count on a positive outcome of the court hearings, because the will was drawn up correctly.
Can the testator's brother challenge the will? Of course, after all, brother and sister go on the same line of succession.
How to prepare for the trial?
The court, which is considering the invalidation of a will, passes after a certain preparation. Experienced practicing lawyers advise: the interested party must first independently study the legislation and assess the chances of a positive outcome.
It is worth making a statement of claim only if the client is confident that he is right. Next, you need to find a good lawyer who understands the specifics of the case. Only a competent specialist will be able to qualitatively draw up a statement of claim, setting out in it logically all the evidence that the plaintiff is right.
When the statement of claim is ready, the applicant goes to court. It is necessary to write out the details for the payment of state duty and information and technical support for conducting business. You can pay these bills at any bank. The cashier will give you payment receipts that must be attached to the statements.
All documents are filed in court in duplicate. A few days after the registration of applications in court, the date of the hearing is set.
An apartment will be challenged by relatives or other people who, by law, can claim an inheritance.
Conclusion
So, a will is a person’s will about the fate of property after his death. In some cases, this will is distorted. If the heirs are sure of this, they can challenge the will to the apartment in court. You can act only by understanding how to challenge the will after death, because errors in this process are unacceptable.
