What types of disabilities are there?
The law recognizes several types of incapacity:
- age (Article 28 of the Civil Code of the Russian Federation). Any person under the age of eighteen is considered legally incompetent. Legal capacity can be acquired earlier if a person marries before the age of 18. And it can also be canceled if the marriage is declared invalid.
- Due to a mental disorder (Article 30 of the Civil Code of the Russian Federation). In this case, a person is recognized as incompetent if doctors and the court determine that he cannot adequately perceive reality and be responsible for his actions. Guardianship is established over a citizen who has lost his legal capacity.
Attention! A person has the full range of his rights and obligations until his incapacity is established by a court and can dispose of his property to the fullest extent.
Video explaining what is considered incapacity and what legal norms govern the process of declaring a person incompetent:
Who is considered an incompetent person in Russia?
According to Russian laws, the following persons are considered to have lost their legal capacity:
- Elderly people. Usually these are bedridden patients for whom guardianship has been established by the state or relatives.
- Citizens with mental illnesses are the most common form of disability. As a rule, such persons are also assigned guardians who are ready to bear responsibility for them.
- There is also partial legal capacity, which limits a person’s legal capabilities. These could be, for example, disabled children.
The status of an incompetent person is acquired at the official level by passing a special commission. A person who, although he appears to be mentally ill, is not recognized as legally incompetent, has all rights and responsibilities in full.
If a citizen made a will for an apartment in good health, but received incapacity later, it will be considered valid. Conversely, a will signed by a sick person who subsequently recovers does not acquire legal force.
How is capacity related to inheritance?
Legal capacity is an extremely important factor in resolving inheritance issues. If the person for whom the will is written does not have it, then the property is transferred to the guardian and the method of its transfer changes.
If the court proves that the testator is incompetent, then the will may generally be declared invalid, since the person who wrote it may not have been aware of his actions.
If the testator was not himself
After a person's death, his will must be read by a notary in the presence of all persons named in the will.
There are situations when one of the heirs is not satisfied with the terms of the will or the shares of property that are intended for them. In this case, you can try to challenge the will due to the incapacity of the person who wrote it.
If the testator's incompetence has not been recognized previously, it will be extremely difficult to do so after death. The court will need to carefully examine the identity of the deceased, and the relatives will need to prove that his last actions were illegal. This can be done by referring to witness testimony and possible alcohol or drug addiction.
Important! If incapacity is proven, then the existing will loses its force, and the notary begins to distribute the property according to the general rules in order of priority.
How to challenge a will in court if there is a suspicion that the testator was incompetent when drawing it up:
If it concerns the heir
There are also situations when, according to a will, some part of the things goes to a person incompetent. In this case, he has the right to receive the due share, but he himself does not need to do anything for this. The inheritance will be received by the guardian, and all the paperwork will have to be drawn up by a notary.
An incapacitated person will also not be able to fully dispose of the property received under a will. A guardian or parent (if the testator is a minor) will help him with this. If the reason for the lack of legal capacity is age , then after a person reaches 18 years of age, he will be able to manage his inheritance in full.
And to monitor how the guardian or parent uses the inherited property and whether it is for the benefit of the ward will be the guardianship authorities, to which the notary applies immediately after the transfer of rights to the inheritance.
Determination of legal capacity by a notary
If, at the time of certification of the will, a lawyer has doubts about a person’s legal capacity, he can easily refuse to provide the service. There are several points that explain the refusal to cooperate due to incapacity in the matter of inheritance:
- As a person with a legal education, he understands that he can become a participant in a crime. Criminal liability does not depend on the status of a citizen. Acceptance of the document may result in the loss of your job and title.
- In any case, the document can be challenged by other participants during the court hearing. If a specialist confirms that at the time of legal capacity the citizen was in serious condition, the inheritance of the incapacitated person may lose its validity. This will negatively affect the reputation of the lawyer.
As an introduction, it is worth studying the information about wills and inheritance. It describes in detail the key points when working with citizens who have a hint of incapacity.
The heir may be an incapacitated person or a minor who receives priority.
If the notary has doubts about the adequacy of the testator
Even the client’s usual overexcitement can lead to doubts about incapacity when writing a will. This may be excessive activity or passivity. It is worth paying attention to an unhealthy appearance or inappropriate actions even at the reception stage. It is quite difficult to evaluate actions, since people have individual characteristics of character and mentality. Does a person have the right to refuse – yes.
How does a notary check?
There are several methods that give the notary a lot of information about the client who is sitting in front of him:
- Checking documents for incapacity when making a will: a specialist verifies age, full name, age of majority. In rare cases, when a minor applies, the information in the document from the guardianship authorities is additionally verified. It can be received by a married person.
- Personal communication with the client before execution of the will: the notary, before signing the will, asks a number of standard questions indicating the adequacy of the client.
If there are obvious signs, the specialist, before signing a will or receiving an inheritance, insists on conducting an examination for incapacity.
Carrying out an examination
In rare cases, when the inheritance situation has gotten out of control, a specialist may make a request to confirm legal capacity. Due to cases of substitution of documents and fraud, the procedure is becoming commonplace. The right of a legally incompetent person to inherit cannot be annulled.
As an example, we can cite a life situation when his relatives or third parties are sitting with the testator. A specialist can also be called to a home or another institution where a person is under the supervision of doctors, etc. The grounds for refusal are specified in Art. 41 Fundamentals of the legislation of the Russian Federation (this point concerns the will).
What to do to ensure confirmation of the testator's capacity
If the testator wants the property and money to be received by a trusted group of people, it is necessary to take all precautions that will help prevent future challenges from other heirs. What to do:
- You can undergo a voluntary examination before going to a notary. This will not take more than two days, but will play a key role in the future. An incapacitated person will not be able to transfer his inheritance to those whom he wants.
- Obtain a psychological and psychiatric report, which will also indicate the normal state of the testator when expressing his will.
It is advisable not to sign such documents with a fever, in an overexcited state, or in emotions. This will arouse suspicion among the notary and will be the basis for ordering an examination.
How can such a person use the property?
The right to receive an inheritance by an incapacitated citizen can be carefully hidden from him by his relatives, since the law in such cases does not always care about the receipt of an inheritance by capable persons. Therefore, when transferring inheritance rights, notaries must be especially careful and careful.
Note! If a guardian suddenly finds out that his ward may claim an inheritance, he should immediately contact specialists. The inheritance will certainly be received, but the incapacitated person will be able to use it only with the help of a guardian or parent.
If the property needs to be divided among the heirs, and there is no will, then the incapacitated person receives his share in any case.
Precedents for invalidating a will
Every heir may have doubts about the legality of the will. Often, in order to resolve a conflict, the court orders an examination. If after it it is revealed that the incapacitated citizen left an inheritance while already in the acute phase of mental illness, the likelihood of the will being annulled is high. It is unlikely that the guardian will receive funds in accounts, apartments, cars, etc. You should remember about the heirs of the first stage.
Additionally, information about minors or incapacitated heirs, whose rights are taken into account first, is studied. Complete and reliable information is the main key to success in challenging a beneficial will.
What needs to be done to receive it?
Since the guardian makes all decisions for the incapacitated heir, he enters into the inheritance in his place. He is obliged to provide the notary with the documents necessary to receive the property:
- death certificate.
- Documents that can confirm the right of inheritance of the ward.
This must be done within 6 months after the death of the testator.
If for some reason it is not possible to contact a notary within this period (for example, the guardian simply does not know about the existence of the inheritance), then the guardian should go to court.
The procedure for this action is the same as for the appeal of other heirs. In court, you will have to prove the existence of circumstances that prevented you from applying earlier.
Can such a citizen refuse?
According to the law (Article 1157 of the Civil Code of the Russian Federation), an incompetent heir has the right to refuse the property due to him.
Attention! This must be done only under the control of the guardian and with the consent of the guardianship authorities. In other cases, the refusal will be considered invalid.
Video about whether it is possible to refuse an inheritance and how to do it:
So, when entering into an inheritance of persons deprived of legal capacity, there are many nuances. There are certain rules according to which such people have a mandatory right to inherited property, but if they wish, they can refuse it. The guardian or parent of the minor has all rights to dispose of the inheritance. But an incapacitated citizen cannot leave an inheritance, since he does not have the appropriate rights.
Inheritance by will
The testator's will is valid if drawn up before the person was officially declared incompetent or partially deprived of the right to enter into legal transactions. If a document is drawn up after a citizen is registered with a medical institution and disability due to mental illness is registered, then it has no legal force. Most often, heirs who are not mentioned in the testamentary will of the property owner undertake to prove the testator’s incapacity.
Proving incompetence would require a trial with a post-mortem medical examination based on medical history.
The absence of a medical diagnosis does not exclude the revision of the will if the interested parties make a strong argument and provide evidence of the mental illness of the person who left the will.
If the court recognizes the will as void and revokes it, then inheritance will occur according to law. A guardian or trustee does not have the right to draw up a will on behalf of the ward, even in his presence and control by the guardianship and trusteeship authority. If, after treatment, a person’s legal capacity is restored, then a will drawn up during illness still does not play a legal role.
Limited legal capacity (drug addiction and alcoholism) allows you to draw up a document in the presence of official guardians and trustees, who must approve in writing their consent to the execution of a testamentary will. Sometimes a sick person who does not have the official status of incompetent, but is not aware of his actions, turns to a notary to formalize his will. In this situation, the notary has the legal right to reject and refuse to certify the will and refer the citizen to a specialized medical institution for a health certificate.
