There are joyful and sad moments in the life of every person. A truly tragic and irreversible event for a person is the death of loved ones and relatives. And that this can happen soon or suddenly, no one wants to think. After the death of relatives, issues of inheritance of the remaining property come to the fore. Many questions arise, a lot of unexplained moments pop up. The only notarial document reflecting the last will of a deceased person is a will. It will determine the process of disposing of the personal property of a deceased citizen.
How many times can a will be made?
Russian law allows you to make a will an unlimited number of times, guided by the wishes of the testator. It is believed that each new testamentary act has made the cancellation or amendment of a will made earlier.
Who can make a will?
Not every citizen has the right to make a will, as a result of which a testament can be invalidated. A testament cancellation or change can be made if the testator:
- minor child (if the minor was found to be fully competent in connection with marriage, then he has a legal right to draw up a testament before reaching adulthood);
- is an incompetent person;
- at the time of writing the will was under the influence of alcohol or drugs;
- not aware of his actions.
Rules for drawing up a testament
The basic rules for the preparation of a testament deed that you need to know to exclude cancellation, change of will and invalidation in the future:
- Drafting a testament is carried out using a notary public.
- The sanity of the testator confirms the lawyer.
- The testator must sign the will.
- If the citizen is legally incompetent, the law allows certification by a proxy in the presence of a lawyer or an authorized person in situations stipulated by article 1129 of the Civil Code of the Russian Federation.
- The form of the testamentary deed is developed by civil law.
- It is impossible to issue a document without the right to change. This is contrary to applicable civil law.
Cancellation of the will
A change or cancellation of a will is provided only by the testator. He makes this decision on his own, without consulting and not informing other people about it.
When canceling a will, remember:
- when registering a new document, the old one expires;
- a will must not contradict the law;
- the testator must satisfy the requirements established by law;
- the will can be challenged in the course of judicial proceedings.
The cancellation and amendment of a will is governed by civil law, article 1130. The notary makes changes to the document and writes it to the registry.
Cancellation Procedure
The procedure for changing and canceling a will by the testator is as follows:
- The bearer of the testamentary application addresses the notary registering the document, presenting at the same time a passport, a copy of the will and the documents attached to it.
- The testator draws up a new testament document certified by a notary public.
- The original of the amended act is taken by the testator. The duplicate shall be deposited with a notary public.
In other cases, the cancellation or amendment of the will is possible only if the document is invalid.
What else do you need to know? A citizen has the right not to notify anyone of a change or cancellation of a will, this is his personal expression of will.
The main nuances of changing the will
Here are the main legal subtleties that must be considered when changing testamentary documents:
- The new testament may contain several minor changes or dramatic amendments. In the new edition, some paragraphs of documents may not be affected at all.
- If the previous testamentary act was canceled during the preparation of a new document, which was subsequently declared invalid, then the previous act shall come back into force.
- Change and cancellation of the will in the event of the invalidity of the will becomes null and void.
- If the first testamentary declaration contains orders not specified in the subsequent one, then after the death of the testator, both documents will enter into force. The first testament document will determine the order of inheritance of property not listed in the second act.
The procedure for drawing up or annulment of testamentary dispositions is the same for all citizens of our country.
Consequences of Cancellation
The procedure for drawing up a change / cancellation of a will using the services of a notary is the main way to change the document.
The procedure for changing, canceling is quite simple and consists of three steps:
- The testator contacts the notary public to change the document.
- The notary draws up an act of cancellation and change of will, certifies the documents.
- The original is handed to the customer. The document takes effect.
Ways to amend a will
Legislatively allowed several ways to change and revoke a will:
- Registration of a new act.
- Execution of a regulatory document listing all the amended items.
Invalidity of the will
If the subsequent will is not valid, then the inheritance shall be in accordance with the previous testament document. If the testator has canceled, in whole or in part, the subsequent will, the original document is not restored. In the absence of a will, the inheritance of property of the deceased occurs according to the order of the heirs.
Making a will is a civil transaction. This transaction may be invalid:
- on general grounds contained in the second paragraph of the ninth chapter of the Civil Code of the Russian Federation on the invalidity of transactions,
- on special grounds provided for in the sixty-second chapter of the Civil Code of the Russian Federation.
When executing a will, cancellation, change of a document are possible according to the following scheme:
- Civil disputes about the invalidity of a will shall be resolved in the manner of legal proceedings. The procedure takes place by the submission of the claim by the heirs to the court to declare the testament document invalid.
- Changes in civil law are taken into account during the trial.
- You can invalidate a document if you have a sufficient number of confirmed arguments.
- If the court declares the testament document invalid, then it will be canceled.
- Any citizen who considers that his legal right with respect to the inheritance has been violated is entitled to file a claim for the invalidity of the testament document. Most often these are heirs.
- In the event of a cancellation of a will, only persons of the hereditary queue can apply for property.
If the reason for the heirs going to court is the reason for the testator making a will in the state of incapacity or mental illness, then the court, as a rule, in such cases requires a post-mortem forensic psychiatric or forensic psychological examination to establish the state of legal capacity of the testator at the time of preparation testamentary document. The material for the study by experts in the field of psychology and psychiatry are usually:
- testator's medical records,
- testimony of the local doctor from the district clinic at the place of registration,
- certificates from law enforcement bodies of internal affairs about the presence or absence of complaints regarding the citizen making the will,
- certificates from management companies or associations of residents of the testator’s home.
If the reason for the recognition of the invalidity of the will is a violation of the procedure for its execution, the court may also satisfy the claim of the heirs. For example, in accordance with the third paragraph of Art. 1124 of the Civil Code of the Russian Federation is necessary for the preparation, signing or certification of a testament document, the presence of a witness, and its absence during the commission of the described acts entails the nullity of the compiled testament document, and the non-compliance of the witness with legal requirements may be the basis for contesting the document.
If the cause of the claim is minor violations, the court does not satisfy such claims in order to ensure the stability of civil circulation and the fulfillment of the last will of the will. Of course, this happens if the violations do not interfere with the correct interpretation of the last will of the testator. In order to ensure the secrecy of the testament process, it is not allowed to challenge the document before the opening of the inheritance.
Testamentary disposition in the bank
The document presented by the new owner of bank accounts, deposits and loans to the bank to transfer to him the right to own them after entering into the inheritance is called testamentary disposition.
Civil law does not provide a form for testamentary dispositions. They are issued on letterheads of credit institutions certified by an authorized person of the credit institution. The testator may change or cancel the testamentary disposition upon personal appeal to the bank.
A testament made in emergency life circumstances can be canceled or changed only the same document. The same rule applies to testamentary dispositions issued by the testator in a commercial bank.
findings
A will in the form established by law is one of the most important aspects of the validity of a document. If you wish to make a will, any citizen of our country must be given guarantees:
- freedom and absence of obstacles for the expression and consolidation of his last will,
- fixing his will to the maximum extent,
- securing the will of the will until the opening of the inheritance.
If the latter is violated, the drafter of the will has the right to use any means of protecting civil rights. Heirs may not know about the will not in their favor. Civil law does not stipulate that a testator must inform someone of the writing or amendment of a written testament document.