As often happens, there will always be someone who will not agree with the desire of another. In the case of inheritance as well. The testator of the property expresses his last will in the relevant document, and after his death, most likely, questions will arise among relatives and friends. What to do if the person not mentioned in the will considers himself entitled to a part of the property of the deceased? How to challenge a testament in accordance with the law? For an exhaustive answer, please refer to Russian legislation.
Right to challenge
Due to the fact that a will is a one-way transaction, it is still a deal, the law provides for the possibility of contesting it. In this case, who has the right to challenge the will? Only a certain circle of persons is endowed with this right - these are legitimate candidates for heirs (first, potential heirs of the first stage) and persons directly indicated in the will document. Is it possible to challenge a will after the death of the testator? Yes. To be more precise, it is simply impossible to do this before the death of the testator, only after.
In what cases does a will dispute?
So, fortunately, a testament can be challenged if there is at least one of the following violations:
- the deceased citizen in his will did not mention the so-called mandatory heirs;
- according to some parameters, the testamentary document is incorrectly drawn up;
- when writing his will, the will was in a condition in which he could not clearly answer for his actions and decisions, perhaps he was misled; the consequence of the recognition by the court of the inadequate state of the testator during the preparation of the will is the recognition of this document as having no legal consequences;
- the legacy of the testator, which can be proved after his death;
- the document was compiled under violent pressure / threats;
- the main or sole heir was deemed unworthy.
Where to go
How to challenge a will after death if there is at least one of the above grounds? To express your disagreement with the will and demand its cancellation, you must go to court, collecting evidence, supported by documents, on one of the listed grounds.
Who belongs to the category of obligatory heirs?
- Children who, at the time of opening of the parent's inheritance, have not reached the age of majority (minors).
- Dependents recognized as disabled.
If these are native people, then they should relate to a certain line of inheritance of property, while being materially dependent on the deceased relative and be fully dependent at least one year before his death. Such relatives include old age pensioners or people with disabilities. But a senior citizen who, for example, is 48 years old, cannot become a contender for inheritance.
Is it possible to challenge a will after the death of the testator, being not related to him by kinship? Yes, if this is not a native person, but, being incapable of work, he had the right to receive regular assistance from the testator, and, unlike the case of an incapacitated relative, such a person must have lived with the deceased for at least one year before his death .
Defining these persons as obligatory heirs, the state protects those who, for objective reasons, are incapable of independent earnings and are not able to fully support themselves.
In this case, can the daughter challenge the will if it is not indicated in the document? Yes, if it falls into one of the above groups of mandatory heirs, for example, has not reached the age of majority or has a disability group. The listed persons in accordance with Russian law will certainly receive their share of the estate, even if they were not indicated by the testator. In the event that the heir indicated in the testament document may lose his livelihood due to the transfer of a certain part of the inheritance to the obligatory heir, then the latter is still deprived of the opportunity to receive his share of the property.
Unannounced property
In addition to the property of the deceased, indicated in the will, there is also property not bequeathed, it is from it that a part for mandatory heirs is allocated first of all. If this is not enough, then the share of the bequeathed property is captured so that it is enough to cover the inherited share.
The size of the mandatory part of the inheritance is calculated based on what proportion the heir would have received by law. Currently, the law prescribes for mandatory heirs at least half of the legal part.
Document invalid
For those who do not agree with the testator’s will, the first question that arises is which testament can be challenged. Only compiled in accordance with Russian law. A will is an important document, which is executed in strict accordance with the law. In the opposite case, you can challenge the will after the death of the testator and achieve recognition of such a document as invalid. For example, the document must contain the signature of the testator himself, which is missing, or, as required by the rules, there were no necessary witnesses, or the signature was falsified. How to challenge a will in this case? A person whose legal rights and interests, in his opinion, have been infringed, has the right to file a lawsuit with a judicial authority.
Invalidation of a completed will: full or partial
Upon consideration of the case, the court may invalidate the testament document both in full and in a certain part. The latter case occurs when the parts recognized as invalid do not interfere with the understanding of the main meaning conveyed by the testator in the inheritance document.
If the court decides on the invalidity of the entire document, then it loses its legal significance and the property of the testator is divided among the heirs according to the law, in accordance with the order. It may be this: in addition to an invalid inheritance document, there is another testament. In this case, the heirs receive their shares according to the last document.
How to prove the insanity of a deceased testator
Is it possible to challenge a will after the death of the testator if the person who made it could not give an adequate assessment of his actions? To prove in court the insanity of the testator, as a rule, you have to resort to the following methods:
- A post-mortem psychological and psychiatric examination, during which all the information about the illnesses of the deceased for the period of drawing up the will is established, is examined with what medicines he was treated and what kind of possible side effects and so on with these medicines. As a result of a medical analysis of the health of the deceased, a conclusion is drawn up about the possible mental deviations / disorders of the testator, which at the time of writing the will could not allow him to adequately dispose of the inheritance in the testament document.
- The testimonies of close people who lived with the testator, as well as neighbors and acquaintances, can outweigh the scales in controversial matters about the state of the deceased. Perhaps they noticed his unusual behavior: he was lost on the street, forgot his name, where he lives, maybe he often talked to himself and so on.
- Presentation as evidence of insanity of certificates from medical institutions stating that the testator was registered and treated for mental illness for the duration of the will.
Unworthy heirs: who are they?
Is it possible to challenge a will after the death of the testator if one of the heirs indicated in it behaves unlawfully in relation to the others? The law of succession clearly defines the provisions under which the heir falls under the concept of unworthy and loses its share of the inheritance. They are conditionally divided into several categories:
- Heirs who consciously encroached on the life of the testator or took his life. Or the same acts in relation to other testamentary heirs. It is important that the court has proved the deliberate intentionality of unlawful acts against these individuals. Moreover, the motive itself does not matter.
- Potential heirs who, through various illegal actions, seek to increase their personal share in the inheritance, resorting to blackmail, threats against the drafter of the will and other heirs. Also, a falsification of the signature in the testament document or a situation where the will itself is maliciously destroyed in order to receive its share, which will be due to the attacker under the law.
- Those persons who are malicious payers of alimony in relation to the testator of property. For example, a granddaughter who does not allocate money to support her grandfather will be unworthy to inherit his property. This applies to cases where the relevant obligations were determined by the court.
It is important to know that sometimes those recipients of an inheritance are recognized as unworthy who, at the time of contacting a notary in order to obtain a certificate of inheritance, do not disclose information about other other heirs that the notary is not aware of.
The consequences of identifying unworthy heirs
The listed persons, if this will be proved in court, being unworthy heirs, lose their part of the inheritance. This may serve as the basis for the cancellation of part or the whole testament document.
Nevertheless, Russian law provides for the likelihood of the unworthy heirs moving into the worthy category, relying on the principle of forgiveness. It consists in the fact that the testator, after the heir proved himself unworthy, showing goodwill, issued another will, in which, forgiving the unworthy, bequeaths to him part of the inheritance.
Terms for contesting probate
Can a will be challenged even during the lifetime of its originator? This document cannot be objected to until the opening of the inheritance, i.e., during the testator's lifetime. The rest of the time limits for contestation are as follows:
- Three years after the opening of the inheritance after the death of the testator. This term applies to a will deemed null and void and has no legal consequences.
- One year from the moment of the discovery by the interested person of new facts, such as drawing up a will by the testator under pressure and / or threats, which is one of the grounds for objections.
The best time to challenge is still 6 months from the date of opening of the inheritance, when no heirs have yet received a certificate giving the right to inheritance.