How to challenge a will for inheritance: in what cases can you challenge it after the death of the testator?

A will is a legally executed document through which a person can inherit property after their death. Certification of the act in the prescribed manner, the formation of provisions according to the rules provided for by the Civil Code of the Russian Federation, entail the onset of legally significant consequences for the inheritance. However, after the death of the testator, some violations of the established requirements of the law may be revealed, which are grounds for challenging the provisions of the will. The procedure for challenging an inheritance under a will can be initiated by an interested person in the manner reflected in civil procedural legislation. Each heir who sees grounds for invalidating a will must understand the essence of the process, as well as certain features that are important for the final decision and the outcome of the consideration of the case.

Is it possible to challenge a will?

The testamentary procedure for inheriting property is regulated by Chapter 62 of the Civil Code of the Russian Federation. This chapter includes Art. 1131 of the Civil Code of the Russian Federation, establishing the grounds and rules for challenging a will in court. When during the formation of a document the basic rules reflected in Art. 1124 of the Civil Code of the Russian Federation, depending on the situation, a testamentary act can be declared invalid either by a court decision or without the intervention of judicial authorities (Part 1 of Article 1131 of the Civil Code of the Russian Federation).

The heirs can challenge the will drawn up only after the inheritance has been opened, that is, after the death of the citizen (the person is declared dead by a court decision), which is reflected in Part 2 of Art. 1131 Civil Code of the Russian Federation.

Thus, the provisions of Art. 1131 of the Civil Code of the Russian Federation establishes the possibility of challenging a will to heirs, but if there are appropriate grounds.

Judicial practice of challenging on the grounds of Art. 178 Civil Code of the Russian Federation

However, as practice shows, Art. 178 is rarely used to challenge a will ; more often, heirs in this capacity rely on Art. 177. It is quite difficult to prove the mistake of an already deceased person, and a living testator has the right to revoke the will.

Accepting an inheritance is often accompanied by drama and litigation. After the death of the testator, the relatives suddenly find out that he transferred his apartment to a complete stranger (roommate, neighbor, social worker, church employee, etc.).

Lawsuits begin, post-mortem forensic examinations begin, witnesses are found, etc.... The court must confirm the validity of the will and reject the claim, or do the opposite. Is it possible to challenge a will after the death of the testator, and how is this done? Which heir can challenge the will for an apartment? How is a will contested in real court practice?

Who has the right to contest a will?

Completely different citizens can be included in a will, including those who are not related to the testator. This suggests that any person whose rights have been violated can also challenge inheritance under a will. For example, a child of the testator who is not included in the will, but has the right to an obligatory part of the inheritance (Article 1149 of the Civil Code of the Russian Federation), can file an application with the court. At the same time, a person who is not a relative, but whose legitimate interests are affected by the provisions of the document (Part 2 of Article 1131 of the Civil Code of the Russian Federation) can also challenge a will.

If we are talking about a will drawn up by spouses jointly, any of the spouses can challenge the document during their lifetime (paragraph 3, part 2, article 1131 of the Civil Code of the Russian Federation).

Who can challenge a will?

The right to challenge a will is exclusively available to people whose rights could be affected by an incorrectly drawn up document - persons included in the inheritance lines established by law, as well as those who would be entitled to a mandatory share according to the will.

A will can be contested only after the opening of the inheritance - a document drawn up by a testator who has not yet died cannot be contested.

For various circumstances, the testator has the legal right to give inheritance rights to any person, determining for him any size of share in the property that will pass to the recipient after the death of the testator. A will is the will of a citizen, which by law must be executed after his death, however, in some situations it can be canceled by recognizing the order of distribution of the inheritance by the giver as invalid.

There are many reasons for revoking a will, the main one being the exclusion of close relatives from the list of heirs or a reduction in their shares in the property of the deceased. How can you appeal a will and what is needed for this?

Civil Code of the Russian Federation on challenging inheritance under a will

The right to challenge a will is regulated by the Civil Code of the Russian Federation, the sequence of actions is established by other requirements of federal legislation. In order to understand the regulatory framework defining the contestation of a will, you can refer to the following articles of the Civil Code of the Russian Federation:

Art. 1118 – the ability to dispose of inheritance through a will, general rules regarding the preparation of the document.
Art. 1119 – the testator has the right to choose any circle of heirs.
Art. 1120 – the ability to transfer any property by inheritance.
Art. 1121 – status of heir in the will.
Art. 1122 – distribution of shares of property in the inheritance.
Art. 1123 – the will is kept secret, the protection of which is carried out in court.
Art. 1124 – basic rules and requirements for the form and procedure for drawing up a will.
Art. 1125 – authentication and certification of a will in order to give it legal force.
Art. 1126 – concept and basic characteristics of a closed will.
Art. 1127 - a list of documents that can be recognized as equal to wills certified by a notary.
Art. 1128 – the possibility of distributing funds held by a credit institution.
Art. 1129 – validity of a will in emergency situations.
Art. 1130 – the right of the testator to change or completely cancel the provisions of the document.
Art. 1131 – recognition of the will as invalid both through the court and without it.

In addition to the Civil Code of the Russian Federation, in the process of challenging an inheritance under a will, the provisions of Subsection II of the Civil Procedure Code of the Russian Federation are applied, establishing the rules for organizing claim proceedings.

Another way to revoke a will

Of course, revoking a will in court is not as easy as it seems. To obtain such a decision there must be a truly compelling reason, and not an empty statement of applicants for membership. Is there anything else that can be done if the testamentary disposition cannot be declared invalid?

If it is impossible to completely revoke the will, the will of the testator can be partially contested. To do this, one or more testamentary heirs must be recognized as unworthy of the right to acquire inherited property.

An unworthy claimant recognized by the court does not take part in the inheritance, and his share passes to the legal successors of the deceased. If such a claimant has already received the property, then he is obliged to return it or compensate other successors for the cost of this share.

In accordance with Article 1117 of the Civil Code of the Russian Federation, persons who have committed unlawful acts in relation to the testator, his successors or the inheritance are recognized as unworthy heirs. The grounds for revoking the right of entry are:

Obstacle to other applicants entering into inheritance.
Concealing part of the inheritance or illegally acquiring a larger share than required.
Committing a crime against the giver or his heirs.
Obtaining a will in one's favor by putting pressure on the giver.

You should also know that, according to the law, unworthy applicants are persons who did not execute court decisions in relation to the testator. For example, they did not support him or did not pay alimony.

The mother and father of the deceased, who were previously deprived of parental rights in relation to him, cannot receive an inheritance by will and by law.

A statement of claim to recognize a certain person as an unworthy heir is filed with the court in the same manner as in case of cancellation of a will. The resulting decision must be submitted to the notary's office.

When is it permissible to challenge a will?

The Civil Code of the Russian Federation specifies a list of conditions under which a will can be challenged in court:

Drawing up a will orally or in writing, but without certification by a notary or other official (Part 1 of Article 1124 of the Civil Code of the Russian Federation).
When drawing up the document there was no witness, when the presence of such a person is mandatory (Part 3 of Article 1124 of the Civil Code of the Russian Federation). The conditions for the need for the participation of a witness are reflected in Part 3 of Art. 1126 Civil Code of the Russian Federation, Part 2, Art. 1127 Civil Code of the Russian Federation, art. 1129 of the Civil Code of the Russian Federation.
In the event that we are talking about a closed expression of will, the writing of the document is not by the testator, but by another person (Part 2 of Article 1126 of the Civil Code of the Russian Federation).
The citizen drawing up the act is partially capable or completely incompetent (Part 2 of Article 1118 of the Civil Code of the Russian Federation indicates the need for the document to be written by a person with full legal capacity).
The heirs are not satisfied with the established distribution of shares of property; a need arose to redistribute the parts (illegitimate children or other heirs appeared who have the right to a compulsory share under Article 1149 of the Civil Code of the Russian Federation).
The heir is recognized as unworthy due to circumstances that do not correspond to reality.

In practice, other grounds for challenging a will may arise. Any violation of the interests of the heirs is grounds for going to court.

Reasons

The relatives of the testator may have a question in what cases the last expression of will can be completely or partially canceled.
A will is considered void on the following grounds:

at the time of filling out the document, the testator was declared incompetent;
the closed will was handed over to an official without witnesses;
the document is filled out not by the testator, but by his representative;
Gross errors were discovered in the execution of the will.

The court recognizes the document as invalid in the presence of such circumstances as:

the testator did not give an account of his actions, was under the influence of psychotropic drugs, narcotic substances;
the citizen suffered from a serious mental illness;
the signatures on the document are forged;
the will was made under physical or moral pressure.

To identify mental disorders at the time of registration of the document, a post-mortem forensic psychiatric examination may be appointed.

Evidence of the testator's incapacity and signs of an unworthy heir

When preparing for trial, it is necessary to pay special attention to collecting evidence. The more arguments are presented, the more likely the positive outcome of challenging the inheritance under a will. The following objects may serve as evidence of the testator’s incapacity:

Conclusion of a psychological and psychiatric examination. As part of the study, experts examine written opinions of doctors regarding the testator, drawn up during the latter’s lifetime.
Documentation from the medical organization where the testator was treated - a certificate confirming that the person was being treated at a dispensary.
Recipes for purchasing medicines.
Witness's testimonies.
Written and oral explanations from persons involved in the probate process.
Certificate of disability.

In addition to the above documents, other papers, videos, and photographs may be provided that confirm the person’s insanity.

Recognition of a citizen as an incompetent heir is regulated by Art. 1117 of the Civil Code of the Russian Federation. The following provisions are recognized as signs of such a person:

The citizen committed actions directed against the implementation of the last will of the testator - forgery of a document drawn up, destruction, theft of a will, or forcing the testator to draw up this act.
Committing illegal acts against the testator himself or one of the heirs.
A person contributed to the inheritance of himself or other persons (or attempted to contribute) by forging a will.
The citizen made attempts or took actual actions aimed at increasing the share of the inheritance.

Each of these grounds is defined in Part 1 of Art. 1117 of the Civil Code of the Russian Federation. At least one condition will be enough to recognize the heir as unworthy and challenge the will for inheritance.

The procedure for recognizing a citizen as an unworthy heir is carried out exclusively in court, that is, another official cannot establish this fact (Part 2 of Article 1117 of the Civil Code of the Russian Federation).

How to prove the unworthiness of an heir

One of the reasons for changing the provisions of a will, or its complete cancellation, is the recognition of the heir indicated in it as unworthy.

Evidence for court

In order for the judge to be able to recognize the heir as unworthy, it is necessary to present to his attention the evidence base: certificates, witness statements, video and audio recordings.

The reasons for recognizing a person as an unworthy heir may be the following:

Unlawful actions of an heir against the testator, his close relatives, or other heirs, in order to increase his share in the bequeathed property.
Citizens who shied away from fulfilling their responsibilities for the care and maintenance of the testator, if these responsibilities are imposed on them by law.
Persons who have been deprived of parental rights or have maliciously evaded the performance of their duties are also recognized by the court as unworthy heirs in relation to their deceased children.

Statute of limitations for challenging a will

The general statute of limitations is 3 years, which is counted from the day when the person learned that the conditions arose for invalidating the expression of will (Part 1 of Article 196 of the Civil Code of the Russian Federation). However, in the case of inheritance there are some special features:

A will is declared invalid by a court decision, that is, it was initially voidable - 1 year from the moment the heir learned that there were grounds for challenging the document (Part 1 of Article 181 of the Civil Code of the Russian Federation and Part 1 of Article 1131 of the Civil Code of the Russian Federation) .
The will was declared void without a trial, which means negative consequences could occur - 3 years from the date of execution of the document (Part 1 of Article 181 of the Civil Code of the Russian Federation and Part 1 of Article 1131 of the Civil Code of the Russian Federation). For example, the will has already been implemented, the property has been distributed among the heirs. A person whose rights have been violated has three years to go to court.

How to draw up a will without it being contested

Firstly, do not act rashly. There are different situations in family relationships, and trying to manipulate relatives by threatening to deprive them of their inheritance is not a solution. Children need to take care of their elderly parents. And parents should remember that strangers are unlikely to be sincerely interested in their lives and affairs. After all, more often their interest lies only in appropriating an apartment or other property.

But if you still want to draw up a will in such a way that it is impossible to challenge it under any circumstances, contact a notary. A specialist will help you draw up the document correctly, attest to the fact of its signing and the legality of the procedure. In this case, no arguments from relatives will work in court.

Where are wills contested?

In order to challenge a will, it is necessary to formulate a claim and submit it to court. Part 2 of Art. speaks about this. 1131 Civil Code of the Russian Federation. Due to the fact that the Russian Federation has a broad judicial system, jurisdiction should be determined. According to Art. 24 of the Code of Civil Procedure of the Russian Federation, this category of cases is considered by district (city) courts. Regarding territorial jurisdiction, Art. 28 Code of Civil Procedure of the Russian Federation - the claim is filed at the place of residence of the deceased. If the application refers to the recognition of the plaintiff’s right of ownership of real estate, the application must be made at the location of the property.

Consequences of the procedure

If there are grounds to believe that the apartment of a deceased relative is unlawfully transferred to a third party on the basis of a will, then the law provides for the possibility of challenging such an order. However, in order to cancel this transaction, interested parties must have sufficient evidence.

The legislation establishes two types of grounds for canceling a will. In the first case, it may be declared invalid on the grounds of nullity - in this case, the document has no legal force from the beginning, since it was drawn up in gross violations of the provisions of the law. In the second case, it can be declared invalid only on the basis of a court decision in the presence of evidence - a contested will.

A will is void if it:

drawn up by a citizen declared incompetent;
not properly certified by a notary or citizens entitled to do so (Article 1127 of the Civil Code of the Russian Federation);
there are no witnesses when their signatures are required to certify a document - in case of a closed will or one drawn up in conditions that threaten the life of the testator;
not signed personally or by a representative in the absence of a notary.

Voidable wills:

there are doubts regarding the authenticity of the signature;
the document was drawn up using violence, threat to life or deception;
the testator was legally competent, but there are reasons to believe that he could no longer understand the meaning of his actions.

Important

The law allows you to make multiple wills. If the last disposition is declared invalid, the property passes to the heirs under the terms of the previous will. Also, the court or notary has the right to interpret the will of the testator based on the general meaning of all orders.

Only an interested person whose rights have been violated by the consequences of the transaction can challenge a will. These may include:

Heirs in order of priority - the right to inheritance according to the law initially belongs to the husband, wife, children, and parents. These citizens have the primary right to challenge a will if they believe that the document was drawn up in violation of the law.
One of the spouses - if, for example, the testator alienates an apartment to a third party, which is jointly acquired property during the marriage.
Bona fide buyer - if a real estate purchase and sale transaction was completed, but the ownership of it was not registered because the seller died. If the seller bequeathed all the property to other citizens, then it is necessary to recognize the ownership of the property in court.
An heir who is entitled to a mandatory share in the inheritance (Article 1149 of the Civil Code of the Russian Federation).

Citizens who are heirs by law have the right to challenge a will, depending on the order of succession (Chapter 63 of the Civil Code of the Russian Federation). If the testator’s entire order is declared invalid, then the estate passes in order of priority to close relatives and family members. These citizens include: children, spouses, parents of the testator.

Persons who are not in the order of heirs according to law can also challenge a will. This opportunity is available to relatives who are legal heirs by right of representation (Article 1146 of the Civil Code of the Russian Federation).

Regardless of the terms of the will, the following citizens can receive a mandatory share in the inheritance:

minors;
disabled: children, spouse, parents, dependents.

Information

If the will was drawn up without taking into account the share of these citizens, then they can challenge it and recognize the ownership of at least half of the share of the inheritance that would be due to them by law. If an insufficient share is transferred, then they also have the right to file a claim to increase it.

Relatives by right of representation cannot claim an obligatory share of the inheritance, since the list of such citizens is exhaustive by law. Also, relatives or their descendants who were found unworthy in court, including those belonging to compulsory heirs, do not have the right to challenge the will.

There are two ways to revoke a will:

through the court;
when contacting a notary.

The notary has the right to independently revoke the will and exclude the citizen from the list of heirs if he is provided with sufficient evidence of the illegal actions of the heir, for example, there is a court verdict confirming that the heir took the life of the testator. Also, the notary has the right to cancel the will if it is obvious that it is void by force of law.

If the illegal acquirer of the inherited property has already received a certificate of the right to inheritance, then the court’s decision to recognize the will as invalid is the basis for canceling the said certificate. The recipient of the inherited property, in this case, must return everything he received under the will.

Attention

If the estate included real estate and an unscrupulous heir registered the right of ownership in Rosreestr, then the court decision is the basis for canceling this right. If the property was subsequently alienated by him to third parties, then the legal successor will have to recover damages through enforcement proceedings.

To challenge a will, you must go to a district or city court. The consideration of the case regarding the invalidity of the will is considered by the courts according to the general rules of jurisdiction - at the location of the defendant. In this case, the defendant will be the dishonest recipient of the inheritance.

In order to be able to challenge a will, there are specially established deadlines, which are:

1 year - if the will, by its legal nature, is contestable. The duration of the period is calculated from the moment when the citizen learned or should have learned about the violation of his right.
3 years - if the transaction is invalid due to its insignificance. The statute of limitations is calculated from the moment the inheritance is opened.

If the heirs have doubts about the legality of the will, then the court must provide evidence confirming the grounds for challenging it.

For example: the testator was not declared incompetent when drawing up the order, but there are reasons to believe that at the time of the conclusion of the transaction he was not aware of his actions. This fact can be proven by conducting a posthumous forensic psychiatric examination. The court will also need to provide documents confirming that the testator had mental health problems - certificates of treatment in a psychiatric hospital, certificates confirming the presence of drug or alcohol addiction, as well as testimony of witnesses.

We suggest you read: Is it possible to challenge a will for an apartment after the death of the testator?

If the will was drawn up under the influence of violence or a threat to life, then as evidence you can provide testimony from witnesses, as well as certificates from medical institutions confirming harm to health, or orders from the police or a court verdict confirming the fact of an attack on the testator.

If there is doubt about the validity of the testator's signature on the will, a handwriting examination is ordered by the court.

An heir may be removed from the will if he is found unworthy in the following cases:

Failure to fulfill the obligations imposed on him to support the testator - court decisions on the collection of alimony or a verdict on malicious evasion of alimony obligations are provided.
Parents are deprived of parental rights - a court decision on deprivation.

According to Art. 1131 of the Civil Code of the Russian Federation, challenging a will before the opening of the inheritance is not allowed. The right to inheritance appears from the day of the citizen’s death or recognition of him as deceased by the court. If you file a statement of claim before the specified deadline, the court will leave it without progress.

This rule exists due to the secrecy of the will, Art. 1123 Civil Code of the Russian Federation. Since the persons present at the certification of the transaction do not have the right to disclose information regarding the will of the testator to dispose of the property.

Important

The legislation establishes an exception regarding the possibility of challenging a will during life. Starting from June 1, 2019, it is possible to draw up a joint will with your spouse. This innovation allows one of the spouses to challenge a will both after death and during the life of the testators.

Is it possible to challenge a will after the death of the testator if the person who drafted it could not give an adequate assessment of his actions? To prove the testator's insanity in court, as a rule, one has to resort to the following methods:

Carrying out a post-mortem psychological and psychiatric examination, during which all information about the illnesses of the deceased at the time the will was drawn up is established, what medications he was treated with and what possible side effects these medications had, etc. are considered. As a result of a medical analysis of the health of the deceased, a conclusion is drawn up about possible mental abnormalities/disorders of the testator, which at the time of writing the will could not allow him to adequately dispose of the inheritance in the testamentary document.
Testimony from loved ones who lived with the testator, as well as neighbors and acquaintances, can tip the scales in controversial issues about the condition of the deceased. Perhaps they noticed his unusual behavior: he got lost on the street, forgot his name, where he lived, maybe he often communicated with himself, and so on.
Presentation as evidence of insanity of certificates from medical institutions stating that the testator was registered and was being treated for mental illness at the time the will was drawn up.

The listed persons, if this is proven in court, being unworthy heirs, are deprived of their part of the inheritance. This may serve as a basis for canceling part or the entire testamentary document.

Nevertheless, Russian law provides for the possibility of unworthy heirs moving into the category of worthy ones, relying on the principle of forgiveness. It lies in the fact that the testator, after the heir showed himself unworthy, showing good will, executed another will, in which, forgiving the unworthy, he bequeaths to him a part of the inheritance.

Required documents

The process of challenging a will is organized through the court, therefore, before contacting this authority, it is necessary to collect the following documents under Art. 132 Civil Code of the Russian Federation:

Application in writing (Article 131 of the Code of Civil Procedure of the Russian Federation).
Applicant's passport.
Death certificate of the testator.
Power of attorney – if necessary (if representatives are involved in the case).
A will that is the subject of a dispute.
Certificate of birth, death, adoption or other documentary evidence of relationship with the testator.
Evidence confirming the existence of grounds for challenging the document.
Duty payment receipt.

In the category of cases under consideration, it is difficult to determine an exhaustive list of documents attached to the claim. You should proceed from the specifics of the current situation and provide the court with all documents reflecting the position of the plaintiff.

Despite the fact that there is no completed application form, it is necessary to comply with the requirements specified in Art. 131 Civil Code of the Russian Federation. To get your bearings and understand what the document looks like, you can refer to the template for an application to challenge a will at the link here.

When can you challenge

Any transaction may be declared invalid if the requirements of legislative acts were violated during its execution or execution of documents. This rule also applies to transactions involving the registration of a will. Violations of the law that will result in the invalidity of a will include:

failure to comply with the requirements for the form of a testamentary document - if the form is not certified by a notary office, the court will invalidate it;
illegal disposal of property belonging to other persons;
drawing up a will by an incompetent person, if this fact was established by a judicial act;
expression of will by the testator under force or its threat, in case of deception or fraud on the part of other persons, etc.;
violation of the secrecy of a will if its contents become known to the heirs before the death of the citizen;
other violations of the law specified in the Civil Code of the Russian Federation.

If these circumstances are established, the claim must be filed in a court of general jurisdiction. The court will verify the facts, and the burden of proof rests with the initiator of the claim.

A typical case of violation of the law, when interested parties will be able to challenge a will, will be the commission of illegal actions on the part of third parties. You can influence the contents of a will by threatening physical violence or intimidating the owner, by deception, by promising any benefits, etc. If such situations are revealed in court proceedings, the guilty persons will be recognized as unworthy heirs and will not be able to claim re-registration of inherited assets.

Often, challenging wills is accompanied by an appeal to law enforcement agencies to initiate a criminal case. In this case, the materials of the criminal proceedings will be used as evidence when challenging the will.

The procedure for judicially challenging the transfer of inheritance under a will

The claim procedure is regulated by subsection II of the Code of Civil Procedure of the Russian Federation. In order to challenge a will, you must follow the following algorithm:

Select the court to which the appeal will be filed.
Form an application under Art. 131 Code of Civil Procedure of the Russian Federation.
Collect applications under Art. 132 Code of Civil Procedure of the Russian Federation.
Send the collected package of documents to the required court through the office, through the Russian Post, or through the State Automated System “Justice” portal.
After 5 days, the person or electronically receives a determination that the application is accepted for consideration. This act indicates the date, time and place of the meeting.
At the appointed time, take part in the proceedings. The judge may request additional documents, clarify some nuances, and hear the other side. If one meeting is not enough, a subsequent one is scheduled.
Based on the results of the consideration of the case, a final decision is made, which enters into legal force 30 days after the announcement in the courtroom (Article 321 of the Code of Civil Procedure of the Russian Federation).
If the will is declared invalid in whole or in part, the inheritance process is organized from scratch. The notary undertakes to distribute the property among the heirs according to the law (Chapter 63 of the Civil Code of the Russian Federation).

Reasons and grounds for revoking a will

Relatives of the deceased, especially his main heirs, do not always agree with the will. Especially if the testator determined to transfer the property to other persons after his death. For example, to his common-law wife. Of course, desire alone is not enough to cancel the will and formalize the entry into law. We will now tell you in what cases you can challenge a will.

The reasons why a will document may be questioned in court can be divided into three categories. The first of them is a violation of the order of document execution. It is possible to revoke a will if it was made:

Without the personal signature of the author of the paper.
From his words. Transfer of will by writing a will through third parties is not permitted.
Without notarization.
Without writing the date and place of the document.

There is also a separate category of wills that cannot be certified because they were written in emergency circumstances. Such a document will have legal force if it was written by the testator himself under certain special conditions, was not notarized, but was recorded by two witnesses.

A will cannot be canceled completely: according to Article 1131 of the Civil Code of the Russian Federation, certain conditions of the will of the deceased are allowed to be declared invalid if they contradict the law, as well as the moral norms of society. For example, this may concern the cancellation of the conditions for accepting an inheritance.

The second category of grounds for declaring a will void is the determination of the testator’s inability to dispose of his property at the time of writing his will due to certain circumstances. A will will be revoked if it was written:

A minor.
An incapacitated person.
A pensioner who, due to age, had dementia or other forms of mental disorders.
An illiterate citizen who does not know the language.
The testator was under the influence of alcohol or drugs.

In this category, the most common reason for revoking a will is the recognition of the testator as incompetent at the time of drawing up the document. This can be determined by medical statements, reports, and certificates of disability. In some situations, the court can be provided with the testator’s medical record and a list of medications he is taking to improve his mental health.

A will will be considered invalid if it was drawn up under pressure or deception from other persons, as well as under difficult life circumstances.

The third category of reasons for declaring a testamentary document invalid is associated with a violation of the law during its preparation. For example, a will violates the rights of the main claimants to receive a mandatory share, contains false information, or represents an imaginary transaction for the transfer of property.

In what other cases is a will for inheritance contested? It is possible to cancel a will if it does not have the exact thoughts of the author or contains an ambiguous interpretation of the will of the deceased. Also, a testamentary will cannot be drawn up by a group of persons.

If there is evidence of any category, the relatives of the deceased can go to court and challenge the will. Remember: it is impossible to deprive the right of inheritance of a citizen who has not communicated with the testator for a long time, has not incurred material expenses for maintaining the inheritance, or has been in conflict with other heirs.

Challenging a will for an apartment

It is real estate that is becoming the most common subject of dispute. Practice shows that in most cases, interested parties (usually relatives or cohabitants) cannot agree with the provisions of the will and attempt to change the situation. If real estate becomes the object of inheritance, it is recommended to file a claim within six months from the date of death of the testator. This duration is the most relevant due to the fact that after receiving the inheritance, the successor may have time to dispose of the apartment and transfer it to third parties. Thus, after receiving a certificate of inheritance, the new owner can dispose of the object at any time, for example, sell, donate, or pledge. Thus, if we are talking about real estate, in order not to complicate the process and not create complications, it is recommended to go to court immediately.

Who can do this and on what grounds?

First of all, you need to make sure that the six-month period required by law has passed.
The second condition boils down to the fact that the heir has entered into his legal rights and somehow violated yours.
The third condition is that a will has been made which can be questioned.
The fourth ground is that you have the right to challenge the will, which means you have the appropriate legal capacity.

There are many other conditions that occur in individual cases and situations. If you do not have any conditions to challenge the will of the apartment, then check your legal capacity; perhaps you do not relate to the inheritance in any way, and therefore cannot carry out your will.

Challenging a will by first-degree heirs

Part 2 art. 1131 of the Civil Code of the Russian Federation indicates that a claim for challenge can be filed by any interested persons. In practice, these are often representatives of the first line of heirs by law: children, spouse, parents of the deceased (Article 1142 of the Civil Code of the Russian Federation). It is these persons who are close to the testator, which means they are probably counting on part of the property. When filing a claim in court, it is recommended to first determine whether the applicant has the right to an obligatory part of the inheritance (Article 1149 of the Civil Code of the Russian Federation). If there is, then this should be indicated. In addition, it is necessary to provide the judge with a document confirming the fact of relationship with the deceased.

Consequences of challenge

What will the initiation of a claim to contest a will entail? If the judicial authority establishes the validity of the demands of the interested person, a decision will be made to recognize the will, or part of it, as invalid. In this case, all property included in the contents of the testamentary form will be distributed among the heirs according to the law. Consequently, it is the heirs of the first priority who are most interested in canceling the will, since they will be able to distribute the property among themselves in equal proportions.

If the issuance of a judicial act took place after the issuance of the certificate of inheritance, or the property was already actually transferred to the heirs, legally significant actions and documents will be canceled. If the inherited property no longer exists in kind, or has been sold to third parties, the heirs will be required to pay compensation in cash.

If property assets are actually in the possession of the heir under a contested will, after the issuance of a judicial act, things and objects will be forcibly confiscated. To do this, the documents will be transferred to the FSSP service, which will begin to execute the judicial act. For real estate, the registration of the transfer of rights will be canceled; for this, a judicial act will be sent to the Rosreestr service. Simultaneously with the cancellation of the invalid registration, the rights to the real estate will be assigned to the proper heir.

Challenging a joint will of spouses

Spouses in a legal relationship can form a joint will. This is convenient when the parties have common property, bank deposits, property obligations, etc. In the current situation, the process of challenging an inheritance under a will has some features:

Any spouse can file a claim during his lifetime, that is, unlike the general rule, a husband (wife) has the right to initiate a challenge to a joint document without waiting for the opening of the inheritance.
One of the marriage partners has the right to appeal a will during the lifetime of the spouses. Other persons in such a situation are not involved in the procedure.
After the death of one of the spouses, other persons whose rights are violated by the provisions of the will are involved in the contestation process. In addition, interested citizens can apply to the court after the death of both spouses.

These features are directly enshrined in Part 2 of Art. 1131 Civil Code of the Russian Federation.

What to do if you lose your case?

If you lose the case and the court rules that you cannot refute the inheritance documents, then do not be upset. If you continue to believe that your claim is legitimate, you can appeal to higher authorities.

For example, today the higher authority is the arbitration court . However, in order for your appeal to be considered, you need to make an appeal within ten days after the decision is made, and you can only appeal through your lawyer.

Contesting wills by grandchildren

Grandchildren can inherit property exclusively by exercising the right of representation (Article 1142 of the Civil Code of the Russian Federation). The possibility of acquiring an inheritance by grandchildren is realized only in the case when the heir who was supposed to accept the property died before the opening of the inheritance, or on the same day as the testator, that is, one of the descendant’s parents died at the same time, or earlier than the grandmother (grandfather) ). This provision is reflected in Part 1 of Art. 1146 of the Civil Code of the Russian Federation. Due to the fact that the grandchildren in this case are the legal heirs, the process of appealing the will is carried out according to the general rules established by Art. 1131 Civil Code of the Russian Federation. Thus, descendants must form an application, collect a list of attachments and submit documents to the court to obtain a legal decision.

You can read more about inheritance to grandchildren after the death of a grandmother in the article on our website at the link here.

Gift deed or will - what cannot be challenged

Sometimes older people, assuming that their will will cause a storm of indignation among relatives and attempts to cancel it, decide to donate their property and sign a deed of gift. But from the point of view of the law, these are not at all equivalent decisions.

When drawing up a will, it only “declares” that the property will one day pass into the ownership of relatives, friends or other people. But this does not happen immediately, but after the death of the testator. That is, even if the apartment is bequeathed to a grandson, the grandfather will own and manage it until the end of his days. By the way, you can “rewrite” your last will as many times as you like, and each last document will cancel the previous one.

A deed of gift implies the transfer of ownership of property “here and now,” that is, at the time of donation. But there are nuances here too. The donation must be disinterested and unconditional, that is, the conditions in the agreement “one party buys groceries and prepares food, and the other gives an apartment for this” do not work. If such a “transaction” is confirmed, the deed of gift can be challenged in court. In addition, gifts can only be given during one’s lifetime. The contract cannot indicate that the apartment will be given as a gift to a caring granddaughter after the death of the grandmother. And the agreement itself is subject to mandatory state registration.

“Both a will and a gift from a legal point of view are transactions,” comments Alexey Karabaev. “If there are grounds, they can be challenged in court.”

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How to choose a lawyer to contest a will?

In order to take part in legal proceedings, it is often necessary to involve a professional lawyer. In the event of a will being contested, it is advisable to highlight separate criteria for choosing a lawyer to participate in the process:

Experience of a specialist - you should take a responsible approach to this issue, that is, look not only at the number of cases, but also at the percentage of those proceedings that ended favorably.
The specialist’s attitude towards the current problem – does he show interest, does he clarify the subtleties and circumstances of the case.
Does it take steps in preparation for trial? If a lawyer takes the case and entrusts the entire task of collecting documents to the client, you should refuse the services of such a specialist.
If possible, you need to communicate with other clients of the lawyer. Such conversations will allow you to get a complete picture of the specialist’s work experience.
Look at the draft documents drawn up - if the drawn up images show sloppiness, fragmented presentation and other shortcomings, it is better to refuse such a lawyer.

When contacting a lawyer, first of all, you need to analyze the current situation with appealing the will and sort it into clear positions. If a solution does not come and real difficulties arise, you should start looking for a representative. It is advisable to contact trusted specialists who can provide assistance not only in filing a claim, but also in representing interests in court.

State duty and expenses for lawyers

In order for the claim to be accepted, you need to pay a state fee. The state duty will be 250 rubles. Take care in advance to get the details from the court office and pay for it.

Also, if you are going to draw up a statement of claim and a package of documents not on your own, but with the help of other persons, then you will probably have to pay for their services. This could be the services of a notary, lawyer, lawyer. Their cost varies, and can be either extremely large or small.

Arbitrage practice

Knowledge of theoretical provisions and legal requirements is very important, but you should have a general understanding of current practical activities. The following cases from judicial practice can be cited as an example of challenging a will:

Citizen A. filed a lawsuit to declare the will invalid. The woman indicated that her father died on July 6, 2019 (the relationship is confirmed by the corresponding birth certificate), whose inheritance was an apartment and money in a bank account. In due time, A. turned to the notary in order to accept the inheritance. While cleaning out her father’s apartment, A. discovered testamentary dispositions regarding funds drawn up in favor of citizen Z. Having gone to court, A. provided certificates from a therapist indicating that the deceased was a disabled person of the second degree, complained of poor memory, responded to The questions posed are of the same type. On the recommendation of doctors, A. collected documents for the court in order to declare her father incompetent, but due to the sudden death of the citizen, she did not have time to do this. Having considered the case materials, the court ordered a posthumous psychological and psychiatric examination of the testator. The results of the study indicated that it was impossible to establish the individual characteristics of the deceased’s psyche, and therefore it was impossible to determine the degree of his sanity. Based on the above, the court refused to satisfy the stated requirements (Decision No. 2-5/2020 of May 29, 2020 in case No. 2-5/2020).
Citizen Zh. appealed to the court with a demand to declare her father's will invalid. This document was signed by the handicapper B. At the court hearing, Zh. indicated that her father suffered a stroke, as a result of which he became disabled 1st degree indefinitely. In addition, in addition to the stroke, the deceased suffered from a number of concomitant diseases, which is confirmed by an extract from the outpatient card. In addition, Zh. indicated that the deceased was influenced by persons (employees of a medical institution who regularly visit the patient) in whose favor the will was drawn up. In addition, there was no need to use the services of an affidavit; the testator could independently certify the document. Having considered the presented materials of the case, the court came to the conclusion that the stated requirements had been satisfied (Decision No. 2(3)-319/2015 of September 22, 2015 in case No. 2(3)-319/2015).

How is the procedure performed?

Instructions:

The dispute takes place in court. In order to contact her, you need to fill out a statement of claim.
Collect the required package of documents, which will be formed properly.
Having combined the application and package of documents, you need to contact the court office.
Submit your documents to the office, and after checking it, you will be given a certificate stating that you actually applied to this authority.
The court considers your application, and if it truly believes that your rights have been violated, it sets a trial date.
You need to prepare an evidence base.
Appear at the court hearing on time.
Provide evidence that will indicate that the will and inheritance should be challenged.
The court, after listening to all your arguments, as well as hearing your opponents, leaves to make a decision.
The decision can be made either in your favor or vice versa. If your requirements are satisfied, the bailiff will ensure that the will is canceled and also revised.

Jurisdiction

In order to challenge a will, you need to go to court. But not every court will consider such cases. You need to go to the district court. It is in this instance that you can defend your rights, and also, a judge of such an instance will consider your cases.

You can submit documents either in person or by sending them via Russian Post.

Documents for the claim

In order for the claim to be accepted, you must provide documents.

First of all, you must attach a photocopy of your passport.
Also, you need to attach a copy of the will with which you do not agree.
It is imperative to provide documents that serve as evidence in the case. They can be presented in the form of originals or copies.
The documents may contain both testimony of witnesses and extracts and certificates from various institutions.
Pay the state fee and attach a receipt that confirms this fact.
You need to attach documents for the property that is in dispute.
Individually, you can bring other papers that are relevant in the current situation.

Proof

As we said above, first of all, evidence can be papers that were collected in various government agencies. They can be presented in the form of certificates, extracts, documents, contracts.

Also, evidence is testimony. It is impossible to convey them orally to the court before the hearing, so record them in writing.

Perhaps your witnesses will independently draw up an act in which they will tell in writing why this will should be contested and the inheritance document is illegal.

Drawing up a statement of claim

When drawing up a statement of claim, you need to do it on an A4 sheet. Write the application on a computer or in written form. Next, you need to divide the statement into several paragraphs.

In the first paragraph, you must provide information about both the plaintiff and the defendant. Then you need to provide data that shows how your rights are being violated. Then, in the statement of claim, you can offer options that will resolve the problem.

Attach a list of documents that are attached to the statement of claim. Also, you need to put a date and signature.

Time limits for consideration and execution of a court decision

The time frame for consideration of the case will be one calendar month plus the number of meetings. The court decision is executed immediately as soon as it is announced.

Important nuances

Challenging a will is an opportunity provided to every interested party. However, before entering into the process, it is necessary to carefully prepare for the procedure and clarify certain subtleties that have a tremendous impact on the outcome of the case:

In order to file a claim in court, you must pay in advance a state fee of 300 rubles. This can be done at any bank branch, or through SberbankOnline or a terminal (ATM) - clause 3, part 1, art. 333.19 Tax Code of the Russian Federation.
The duration of the trial is 2 months (Part 1 of Article 154 of the Code of Civil Procedure of the Russian Federation) - that is, during this period the judge orders one or more trials. The specified duration may increase by another month when difficulties arise and additional efforts must be made to resolve the case of challenging the inheritance under a will (Part 6 of Article 154 of the Code of Civil Procedure of the Russian Federation).
In the event that during the life of the testator some doubts arose about the adequacy and sanity, an examination should be immediately carried out and the person’s incapacity should be established. Posthumously, this process is organized much more complicated.
Mistakes in the will and other minor violations of the established procedure for drawing up the document are not grounds for appealing the act in court.
Not only the entire will, but also some of its parts may be declared invalid. In such a situation, only certain provisions are canceled; other aspects come into force as a general rule.
In the event that a document is declared invalid by a court decision, the persons who were included in the will are not deprived of the right to inherit property by law (in the manner established by Chapter 63 of the Civil Code of the Russian Federation), or on the basis of another valid act.
Representatives of the first priority have the right to challenge a will (Article 1142 of the Civil Code of the Russian Federation), followed by the heirs of the second (Article 1143 of the Civil Code of the Russian Federation), third (Article 1144 of the Civil Code of the Russian Federation) and other priority.

Applying to court to cancel a will

Is it possible to challenge a will for inheritance and how to do it? A will is a transaction that can be declared void after the death of the maker only in court. The applicant needs to prepare a statement of claim, as well as collect evidence for the court of one of the grounds for declaring the paper void.

During his lifetime, the testator himself has the right to cancel his will and draw up a new one an unlimited number of times. The latest version of the document will be recognized as valid by law.

How to challenge an inheritance under a will, for example, for an apartment? An approximate plan of action when recognizing the order of a deceased person as invalid would be as follows:

It is necessary to prepare a statement of claim and evidence of its insignificance.
File a claim in court at the place where the inheritance was opened.
Receive the decision of the judicial authority and submit it to the notary.

Please note: the will may be empty if the property previously distributed by the testator in the document was sold (sold, donated) by him.

For registration of inheritance, the legislation provides for certain deadlines, which are six months from the date of death of the giver. A legal period has also been established for challenging his will: according to Article 181 of the Civil Code of the Russian Federation, it is possible to revoke a will:

Within one year, if the reason for cancellation is related to the execution of a document under pressure, deception, or blackmail by third parties against the testator.
Within three years, if the reason for canceling the document is related to the incapacity of its drafter or the presence of violations in the procedure for drawing up a will.

If you draw up an application to revoke the will later than the established deadlines, the court will refuse to consider such a case due to the expiration of the statute of limitations. But applicants can accept an inheritance by will or by law at any time: even in a year, even in ten. But only if they can prove that the reasons for missing the entry deadline are valid.

Grounds for appeal

All the grounds given in civil legislation can be divided into 4 categories. Each of them has certain specifics and may provide for some variability.

This includes not only deprivation of legal capacity, but also its absence at the time of drawing up the document. The grounds (if there is “official” legal capacity) for challenging the will for an apartment will be the following circumstances. Testator:

was registered with a neurologist, psychiatrist, narcologist, but was not deprived of legal capacity;
underwent a course of treatment associated with taking medications that affect the brain and human psyche;
was in a state of alcohol, drug or other intoxication;
acted under the threat of violence (physical, moral, etc.), under other pressure (blackmail, etc.).

In some cases, the will does not correspond to the will of the deceased, which leads legitimate claimants to believe that the document was forged. But suspicions alone will not be enough to go to court. It is necessary to specify the actual discrepancy between the text of the will and the will of the testator.

The form and type of a will are specified very clearly in the legislation. Therefore, any deviations are sufficient grounds to consider the document invalid. Most often the reasons are:

absence of the testator’s handwritten signature on the document;
the will for the apartment is not certified by a notary;
there is no entry in the register of wills (for documents drawn up in 2021 and later);
the closed will was printed on a printer or typewriter;
a will drawn up under emergency circumstances is not signed by the testator or witnesses.

In certain situations, persons who fit the criteria described in Art. 1117 Civil Code of the Russian Federation:

who committed a crime against the testator, co-heirs;
maliciously evaded the maintenance of the testator (provided that this was their duty).

Naturally, such persons do not have the right to inherit the property of the testator.

The law provides for a mandatory share in the inheritance. Sometimes testators do not indicate the persons entitled to their share in the inheritance. But this does not mean that they will not get a share. They have the right to demand at least 50% of what would be due to them if they inherited the apartment by law.

But this is not a basis for opening a dispute about the will in its “pure form”. The issue is resolved “automatically”, often without going to court.

Whose rights to inheritance are unconditional

Uncontested rights to the property of a deceased person, that is, unconditional, are possessed by incapacitated, disabled heirs who are dependent on the testator. They have the right to a certain piece of the bequeathed “pie” under any circumstances.

This category includes:

parents or spouses who are on old-age or disability pensions;
children recognized as disabled, minors;
relatives who are dependent on a person during his life for at least one year.

It doesn’t matter who belongs to the category of compulsory heirs, he can claim 50% of the share that would have been given to him by law if there had been no will at all.