Is it possible to legally challenge a will in court?

Receiving an inheritance is possible by law and by will. If suddenly you are not on the list of heirs in the will, but you have legal grounds for it, it is too early to get upset. Any will with a certain probability of success can be challenged in court. The law establishes a minimum share of the inheritance for certain categories of relatives if they are not indicated in the will. In this article we will look at who has the right to challenge a will and what reasons there are for this. And how to secure your will so that after your death it is not the subject of litigation.

Is it possible to challenge a will for an apartment after the death of the testator?

The legislation provides for the possibility of challenging a will or a separate part thereof if the reliability and validity of the act of unilateral will of the testator is in doubt. If successful, the last will is revoked and the previous one or, in the absence of one, inheritance by law comes into force.

It is quite possible to achieve the cancellation of a valid will, but this requires compelling reasons that exclude a violation of the rights of citizens to freedom of disposal of personal property according to their own convictions.

You should prepare for difficulties and legal proceedings, during which the validity of canceling the act of will will be considered.

In this case, it is important to be guided exclusively by honest and fair intentions. If the fact of bad faith of the applicant is recognized, his claims are deprived of legal significance. An example of this is a situation where the applicant, by his behavior, gave other persons reason to assume that the will was valid, and at that time he himself participated in the process of appealing it.

Grounds for appeal

Among the grounds for annulment of a testamentary disposition, two groups of circumstances can be distinguished:

Grounds related to the content of the document (various types of distortions of will);
Reasons related to the form and method of drawing up the document.

The first group includes the following grounds:

Incapacity of the testator when he could not understand and control his actions. Such status is legally assigned to a person only by court decision, and any notary will completely legally refuse to issue death orders on behalf of an incapacitated person. However, in practice, there are often cases when a will was certified before the decision to declare a citizen incompetent, and even after such a decision. As noted above, in the latter case the will is void, and it will not be difficult to revoke it. As for the situation when a will was drawn up by a person who is not capable of realizing his actions, but is not recognized by the court as incompetent, it is also possible to challenge such a document, however, this is associated with a rather complex legal process and a post-mortem psychological examination;
Reflection in the will of the testator’s distorted will. The factors that caused the transformation of will include the use of both physical and psychological violence, threats, and blackmail. This group of circumstances should also include the discrepancy between the expression of will reflected in the will and the real one due to the emergence of a situation of extreme necessity, when the testator was forced to make an unfair order by prevailing circumstances;
Drawing up a will while under the influence of drugs or alcohol.

The group of circumstances associated with non-compliance with the requirements for the procedure and form of drawing up a document include:

Lack of necessary details, for example, place of compilation or date;
Certification of a will by an unauthorized person. The law clearly defines the circle of officials who can certify a will, these include:
Notaries;
Chief doctors and heads of hospitals for testators undergoing treatment in the appropriate institution;
Ship captains - for persons sailing on these ships;
Heads of expeditions - for participants of these expeditions;
Commanders of military units - for military personnel;
Heads of places of deprivation of liberty - for persons serving sentences there.
Drawing up a will by an improper person - through a representative, a group of persons, etc.

The legislation also defines the grounds that allow the cancellation of a completely legally drawn up and certified will. For example, a court verdict has accused the person for whom the will was drawn up of murdering the testator; whether such a document can be challenged in court, we will consider further.

Other ways to cancel a will or part of it: declaring the heir unworthy and obligatory share in the inheritance

The legislation defines the concept of an unworthy heir. This is the person:

Committed illegal actions against the testator or other heirs;
Trying to illegally increase one's own or someone else's share of the inheritance;
Preventing the execution of the last will of the testator;
Being a parent deprived of parental rights in relation to the testator;
Evaded the fulfillment of his duties in relation to the testator.

All these actions are grounds for deprivation of the inheritance, and even of its obligatory share, if they were committed after the drawing up of the will.

Another good reason for changing or canceling a will is the allocation of a mandatory share that was not taken into account by the testator in his last disposition. This share is allocated, regardless of the will, in the amount of half of the property due in the event of inheritance by law, to the following categories of persons:

Disabled parents - dependents of the testator;
Disabled children - dependents of the testator (minors and adult disabled children).

Thus, the variety of grounds presented by law allows us to answer in the affirmative the question of whether it is possible to challenge a will for a house after the death of the testator. Let us consider in detail the procedure for declaring a document invalid.

Who can challenge an inheritance under a will?

The last will of the testator can be challenged by the heirs of the first priority according to the law: spouses, children, grandchildren (only if their parent-testator died at the same time as the testator or earlier), parents. In the event of their absence or death, this right is acquired by the second stage of legal successors: brothers and sisters (if there is at least one common parent), as well as their children (by nomination), grandparents on both lines. And then in order of priority:

sisters and brothers of parents, as well as their children;
parents and grandparents;
cousins and grandparents' siblings;
great-grandchildren through siblings, great-aunts, uncles, nieces and nephews;
children of the official spouse (s) from previous relationships, legal spouse (s) of the mother or father.

The heir by law who lived in it and does not have other housing will have an advantage in challenging the inheritance of an apartment.

It is worth remembering that there is a category of persons who, according to Art. 1149 of the Civil Code of the Russian Federation, a share of the property is entitled, regardless of the orders of the deceased, and to obtain it there is no need to challenge the will, this is:

Official spouse, provided that the apartment was purchased by them during marriage.
Children under 18 years of age.
Disabled relatives who were supporting the deceased for at least a year before his death.
Disabled persons who are not included in the circle of legal heirs, but were dependent on the testator and lived with him for 12 months or more before the opening of the inheritance.

At the same time, the spouse has the right to half of the apartment, minor children - half of the share due to them by law (if in the will they do not inherit the full one), dependents also receive half of the part of the real estate due to them (Article 1148 of the Civil Code).

Also on the topic: How to challenge a will for inheritance after death?

In what cases will it not be possible to challenge a will?

Although proper plaintiffs have the right to try to challenge any will, not every document succeeds.

It is impossible to challenge the paper with the last will of the testator in the following cases:

The document has been drawn up in full compliance with current legal regulations.
The paper is certified in accordance with all the rules by persons entitled to do so (notary, management of a medical institution, military unit, commander of a ship or aircraft).
Does not contradict the provisions of inheritance law, does not infringe or limit the rights of legal heirs.
The maker of the will is alive, and it has not entered into legal force.

When the court rejects the request to challenge the inheritance of an apartment

The court will reject requests to invalidate the testator's last orders if the plaintiff is:

An incapacitated or partially capable heir. Instead, the initiator of the opening of legal proceedings in the case may be a legal representative established by the guardianship and trusteeship authorities.
A minor heir, with the exception of 16-year-olds who are recognized by the court as emancipated. In this case, the child’s parent or guardian can protect the legitimate interests of the child.
A person who is not an heir and beneficiary, whose rights were affected by an unlawful act of expression of will. According to the law, such a citizen cannot become a plaintiff due to the lack of visible interest in the process.
An unworthy heir, deprived of the right to claim inheritance property.

Also, it will not be possible to invalidate a will if it is impeccably accurate and complies with the provisions of Art. 62 of the Civil Code of the Russian Federation, as well as before the document comes into force.

Minor typos that do not distort the meaning of the text and do not interfere with understanding its essence also cannot become sufficient grounds for challenging the document.

Who can challenge a will?

In Art. 1131 of the Civil Code states that a will may be declared invalid by a court upon the claim of a person whose rights or legitimate interests are violated by this will. We are talking about those who could receive inherited property if the will had not been drawn up. First of all, these are heirs according to the law of the first priority: the spouse of the deceased, parents, children.

At the same time, minor children, disabled adult children, disabled parents or other dependents of the deceased are not required to dispute the inheritance. According to the law, they are entitled to a mandatory share in the inheritance in the amount of 1/2 of the part of the property that would be due to them by law.

In what cases can a will be challenged?

The grounds for appealing a will for an apartment may be as follows:

The content of the act contradicts the legislation of the Russian Federation and violates the foundations of morality and good order.
The will was drawn up by a minor aged 14 to 18 years, who had not achieved full legal capacity, without the consent of his legal representatives (the same applies to other persons limited in legal capacity by a court decision).
At the time of writing his last expression of will, the testator did not actually have the will or could not control his own actions (under pressure from third parties, in a state of severe alcohol or drug intoxication, under the influence of strong psychotropic drugs).
The testator determined the fate of his property under the influence of serious misconception or deception on the part of interested parties (does not apply to the motives of the inheritance transaction).
Certification of the act of transfer of property rights was carried out without the personal presence of the testator.
The witnesses who signed the document were a notary or another person authorized to certify the will, heirs and legatees, citizens with limited legal capacity who were unable to adequately perceive the essence of what was happening, illiterate people, and insufficiently fluent in the language of drawing up the act.

A will can be declared invalid without judicial recognition. A document will be considered void in the following cases:

the testator is incompetent or has not reached the age of 14;
lack of certification by a notary (or other authorized person) and signatures of witnesses (when drawing up a closed will);
non-compliance of the document with the established form (except for its preparation in emergency conditions);
lack of date and record of the place where the will was made;
not a single statement of the last will.

Unworthy heir

Another option for the return of rights to real estate and other property by close relatives of the deceased is the recognition of the heir under the will as unworthy.

Points defining the “unworthiness” of the heir:

evasion of the obligations imposed by law to maintain and care for the testator;
committing illegal actions in relation to the testator or other heirs in order to increase benefits for themselves or other persons.

Deprivation of an unworthy applicant's right to a private house or apartment occurs in court.

How to challenge a will? Reasons for challenging

Every person, according to the Constitution, has the right to independently dispose of personal property. One of the ways of such a disposition is to transfer it by inheritance to any individual or legal entity, at its own discretion. The act of transferring an inheritance is documented in the form of an official document certified by a notary. But, despite this, it is not an unshakable expression of will, and can be challenged in court.

The procedure for challenging a will is established by Art. No. 1131 SCRF. According to this legal act, only a court can invalidate the entire will, or some of its parts.

Accordingly, a person who wants to challenge the document with the posthumous will of the deceased must file a statement of claim in court.

De jure, any citizens who believe that a will violates their legal rights have the right to do this. But in fact, the courts mainly accept claims from relatives of the deceased, or from persons specified in the will.

In addition, the applicant must have compelling reasons to request that the document be invalidated. They are indicated in Chapters No. 9 and No. 62 of the Civil Code of the Russian Federation, and are divided into internal and external.

Domestic

Internal, or as they are also called, general causes include :

The citizen, at the time of drawing up his will, suffered from a mental disorder, as a result of which he could not be aware of the legal consequences of his actions.
The deceased was not fully sane due to senile dementia.
A will was made by a person under the influence of alcohol, drugs, or potent medications.
The will recorded in the document does not correspond to the real will of the testator.

As we see, internal reasons for recognizing a will as invalid imply that the testator is in a state that does not allow him to sensibly evaluate his actions.

External

External, or special, reasons include various errors and inconsistencies in the procedure for drawing up a testamentary document. All of them relate to the standards of legal paperwork, and do not depend on the state of a particular individual.

External reasons include :

The document was drawn up using physical or psychological pressure, blackmail, and deliberate misrepresentation against the testator.
There are serious irregularities in the paperwork process. For example, the signature of the testator or notary is missing, the date of compilation is not indicated, or incorrect passport information is indicated.
The document was not drawn up by the testator himself, but by third parties. An exception is emergency wills, the procedure for registration of which is prescribed by the State Property Committee of the Russian Federation.
The fact of forgery of a document, forgery of signatures, etc. was revealed.
Those indicated in the document with the will of the deceased person are recognized by the court as unworthy heirs.

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Natalya Volkova

Inheritance expert

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External factors may also include other violations of a bureaucratic nature, or related to administrative and criminal violations of the law.

How to challenge a will for inheritance after death

The will for an apartment, just like for other property, is contested in court. To do this you need:

Step 1. Contact a lawyer to file a claim.
Step 2. Appear in the district court with the claim for its consideration.
Step 3. Wait for the court's decision, promptly responding to requests to provide missing data and documents.

Contesting a will for an apartment begins with drawing up a claim, collecting and attaching the necessary documents to it. To do this, the plaintiff indicates in the prescribed form:

name of the court;
personal data of yourself, your representative and the defendant (full name, address, telephone);
amount of state duty;
an explanation of the grounds for the invalidity of the will with the obligatory signatures of three witnesses;
the essence of the request.

Also on the topic: Entering into inheritance through the court: statement of claim, procedure, what documents are needed

The following documents are attached to the claim:

Death certificate of the testator (copy).
Disputed will (copy).
A document on the basis of which the plaintiff claims the inheritance (its shares).
A paper confirming the invalidity of the will, for example, an extract from the testator’s medical history or a court decision declaring him incapacitated (copy).
Certificate of inheritance received by the defendant (copy).
A petition to call a witness (must contain his personal data, as well as the weight of the arguments that he can bring to resolve the case).
Copies of all the listed acts and the statement of claim itself for transmission to the defendant.
Receipt for payment of state duty.

If a representative of the plaintiff is involved in the trial, then his power of attorney must also be attached.

The court considers the details of the case and orders measures to prove the fairness of the plaintiff’s claims, for example:

post-mortem forensic examination;
establishing facts of violence against the testator during the preparation of the will;
collecting witness statements;
obtaining certificates from medical institutions where the testator was observed;
examination to establish the authenticity of signatures.

Is it possible to challenge a will for an apartment? Specifics of the appeal procedure

Based on the rules enshrined in paragraph 4 of Article 1131 of the Civil Code of the Russian Federation, a will can be declared invalid either in whole or in part. For example, a testamentary disposition may be contested, while the document as a whole does not raise questions either among interested parties or the court.

To challenge a will (both in general and its individual provisions), there must be significant violations of the norms of the Civil Code of the Russian Federation. At the same time, according to paragraph 3 of Article 1131 of the Civil Code, the validity of the document should not be questioned on the basis that it contains obvious technical errors (slips) or other minor defects that do not distort the will of the testator.

Do not also forget that a successful challenge to a will does not affect either the rules of inheritance by relatives by law, or another will, for example, one drawn up earlier, if there is one (for information on obtaining information on this matter, read the article “How to find out if there is a will”) .

You can find more complete information on the topic in ConsultantPlus. Full and free access to the system for 2 days.

Statement of claim

A claim to challenge the orders of the apartment owner does not have an approved form, but there is a generally accepted structure that should be followed when drawing it up.

The content of the application consists of the following blocks:

Introductory. It displays the name of the court to which the claim is filed, last names, first names, patronymics, residential address and contact details of the parties to the upcoming process - the plaintiff, his representative and the defendant(s).
Motivational. All the essential circumstances of the inheritance case and the reasons for the dispute are revealed here.
Pleading. The block expresses the applicant’s demands and their legal justification.
Applications. Contains a list of documents and materials that are significant in substantiating the plaintiff’s position.

The claim may include a request to call witnesses, order an examination or other actions that may be useful in considering the case.

Sample statement of claim to challenge a will in 2020

When drawing up a claim, most questions arise about the content of the motivation and petition block. You can take the following example as a sample.

Who can challenge the will for an apartment among relatives, interested parties, etc.

The provisions of the Civil Code of the Russian Federation do not clearly define the list of persons who have the right to challenge a will (both for an apartment and for other property). Paragraph 2 of Article 1131 only establishes that a claim to invalidate a document can be filed by a person whose rights or interests are affected by its terms. From the essence of this transaction, it is obvious that the heirs of the first stage (in their absence, the heirs of the second and subsequent ones) have the right to challenge the will for the apartment, since it is their rights to inherit by law that may be violated.

For reference: the primary heirs, in accordance with the provisions of Article 1142 of the Civil Code of the Russian Federation, are the children, spouse or parents of the testator. We should also not forget about the possibility of inheritance by the grandchildren of the testator if their parents, who are the heirs of the first priority, died before the inheritance opened. Accordingly, such citizens can divide among themselves the share that would be due to their deceased parent, in accordance with paragraph 1 of Article 1146 of the Civil Code of the Russian Federation.

In addition, the testator has the right to make a testamentary refusal that imposes on one of the heirs a certain obligation in relation to a third party, or a testamentary assignment that provides in the will the obligation of the heir to perform some action of a generally useful nature (for example, look after the testator’s pets). These provisions may also violate the rights of persons in respect of whom they are issued or whose interests are affected by them.

In this case, interested parties can be both relatives (heirs) and strangers (neighbors, close friends of the testator, etc.). Accordingly, in such a situation they also have the right to go to court with a claim to challenge the will as a whole or a separate part of it.

Evidence to the court to confirm the insanity of the testator

The inadequacy of the testator is the most common basis for declaring a will invalid. There may be several reasons for this condition, for example:

alcohol, drug intoxication;
exposure to potent psychotropic drugs;
short-term clouding of reason;
mental illness that completely or partially impairs thinking abilities.

But not all of them are easily provable after the death of the testator. Problems usually do not arise if he was already registered with a medical institution or sought treatment from a private practicing doctor. To obtain confirmation of insanity in this case, it is enough to obtain a certificate from them or summon them to a court hearing.

It is much more difficult to prove that the testator was in a state of passion or another form of short-term mental disorder, including one caused by the action of chemical substances. To do this, you can conduct a forensic medical examination or listen to the testimony of witnesses.

As for other grounds for challenging a will, they can be confirmed using the following evidence:

A court verdict on the guilt of persons who put pressure on the testator (moral, physical violence, threats).
Certificates of insanity of mandatory witnesses to the act of expression of will or documents confirming their interest.
Testimony of witnesses, photos, video materials that have undergone examination of audio recordings.
A certificate from a notary confirming the absence of written parental consent to a will made by a testator aged 14–18 years.

In what cases can a will be contested?

When deciding in which cases a will for an apartment is contested, one should clearly distinguish between situations where the contested document is obviously void and invalid.

The list of situations when a will is considered obviously void is contained in paragraph 2 of Chapter 9 of the Civil Code of the Russian Federation. Signs of the nullity of a transaction are:

the presence of gross violations of the law encroaching on the foundations of law and order or morality (Article 169);
the desire of the testator to create the appearance of a transaction with a will or to cover up another transaction (purchase and sale, barter, donation, etc.). In legislation, the first case is called an imaginary transaction, the second - a feigned one (Article 170);
incapacity of the testator due to the presence of mental disorders and a court decision on deprivation of legal capacity, as well as the establishment of guardianship over him (Article 171);
will of an apartment that is under arrest or the disposal of which is limited by a court decision (Article 174.1).

Paragraph 2 of Chapter 9 of the Civil Code of the Russian Federation also lists the signs, the presence of which serves as a basis for invalidating a will in court at the suit of relatives or other interested parties. For convenience, in legal theory and legal practice, all grounds are divided into 3 groups:

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The defects of the transaction itself, that is, violation of the law when drawing up a will.
Defects of the subject, that is, the making of a will by a person who does not have sufficient rights to do so.
Defects of the will of the testator, i.e. situations when, due to some reason (deception, threats, etc.), the will does not reflect the true intentions of the testator.

Time limits for challenging a will for an apartment

The period when you can file a claim to contest a will is regulated by Art. 181 of the Civil Code of the Russian Federation and amounts to:

1 year from the date of cessation of threats and illegal actions directed at the testator, or from the moment when the plaintiff learned or should have learned about these and similar circumstances;
3 years from the date of conclusion of the void transaction or when the plaintiff learned about the opening of the inheritance (should have known), but no more than 10 years from the date the will came into force.

Also on the topic: How to write and where to submit an application for acceptance of inheritance by law?

On what grounds can it be challenged?

You can challenge a will on general grounds, on which any transactions are invalidated, or on special grounds, relating exclusively to the issue of wills.

The general grounds provided for in Chapter 9 of the Civil Code include the following cases:

the will was drawn up by a person who has been declared incompetent or partially capable by a court;
at the time of drawing up a will, a person could not fully understand the meaning of the actions being taken and make a decision. This could be due to his mental disorder, serious illness, senile dementia, or due to alcohol or drug intoxication;
the testator wrote the will under duress, using threats or physical violence, or was misled;
the will is falsified, the signatures are forged;
the will of the testator is contrary to the law.

In what cases can a notary refuse to open an inheritance case? More details

To prove the mental or physical disorders of a deceased relative, medical certificates are provided, witness testimony is involved, and a post-mortem forensic psychiatric examination is often conducted.

Special grounds provided for in Chapter 62 of the Civil Code are given when:

the form of drawing up the will is violated: all the necessary signatures and dates of drafting are missing, it is not certified by a natary;
the will was signed not by the testator himself, but by his representative;
there were no witnesses in a situation where their presence was mandatory (closed will);
the witnesses were chosen incorrectly: they were relatives of the testator or his potential heirs, had poor command of the Russian language, etc.
property was bequeathed that at the time of its preparation did not belong to the testator.

Question answer

In what cases can a will be declared invalid? A will can also be annulled if the heir is found unworthy. According to Art. 1117 these include:

citizens who, by their deliberate illegal actions against the testator or his heirs, tried to obtain an inheritance;
parents who were deprived of parental rights in relation to their children-heirs and who were not restored to these rights by the day the inheritance was opened;
citizens who shied away from fulfilling their obligations under the law to support the testator.

Expenses

The state fee for considering a case challenging the posthumous orders of the testator is paid when filing a claim. Its size is established in accordance with Art. 333.19 of the Tax Code of the Russian Federation and directly depends on the price of the claim:

up to 20 thousand rubles - 4% of the amount, but the minimum rate is 400 rubles;
20–100 thousand - 3% of the difference between the actual price of the claim and 20 thousand plus 800 rubles;
100–200 thousand - 2% of the amount over 100 thousand and a fixed payment - 3200 rubles;
200–1000 thousand - 1% of what is more than 200 thousand, 5200 rubles;
above 1 million - 0.5% of the claim price minus 1 million and 13,200 rubles (the total payment cannot exceed 60 thousand rubles).

The price of the claim is determined by the applicant himself, based on the estimated value of the bequeathed property. But a clearly underestimated amount can be corrected by the judge when accepting the application.

How to Avoid Contestation

A testator who wishes to draw up a legally significant, incontestable will should take into account all the criteria for the invalidity of the act listed in the article, and also take into account the following recommendations:

To confirm your sanity when making an expression of will, attaching to the document certificates from a medical institution about legal capacity, absence of mental disorders and psychotropic/narcotic substances in the blood will help.
Invite several witnesses to witness the will.
Verify the adequacy of the witnesses present at the certification of the document or signing it instead of the testator.
Note in the will the list of attached documents, and leave the act itself (the copy issued to the testator) for safekeeping in a safe place, informing the trustee about it. In this way, it is possible to prove the presence of all necessary documents and certificates, for example, permission from the parents of a minor testator or a medical report on the legal capacity of an adult.

How to draw up a will for an apartment so that it is not challenged

To prevent a will for an apartment from being challenged in the future, it is necessary to draw it up in such a way that there is no doubt about the legality of the will of the testator.

The first evidence of this is the notary who certifies the document. In the course of performing a notarial act, he evaluates the testator’s legal capacity, condition and ability to correctly assess what is happening by the appearance and behavior of the testator.

When writing a will and certifying it to a notary, witnesses who will also confirm the legality of the will. But the following cannot act as them:

the notary himself;
the citizen in whose favor the apartment is bequeathed, and his family;
partially capable and incapacitated;
illiterate and poor knowledge of the language in which the will is drawn up;
persons suffering from disabilities due to which they cannot fully understand what is happening, for example, blind people.

The entire process of drawing up a will can be captured on video , which will serve as additional confirmation of compliance with the requirements of the law. From the record it will be possible to judge how much the testator was able to correctly understand his actions.

Evidence of legal capacity and clarity of mind can be provided by certificates from a drug and mental health clinic stating that the testator is not registered with them. You can also obtain certificates from other medical institutions, from which it is clear that the testator is able to soberly assess the situation and his actions.