How to challenge a will? Legal advice from a lawyer

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.

How to challenge a will for an apartment

A will may be declared invalid either by virtue of a corresponding court decision, as voidable, or regardless of this, as void. However, it is often necessary to prove both contestability and insignificance in court in any case.

To challenge a will for an apartment, you must file a statement of claim. It must , with references to regulations , how the interests of the plaintiff are violated and how the invalidity of the will is expressed.

The application is submitted to the court at the place of residence of the defendant or at the location of his property.

The plaintiff is required to provide evidence of his position . These include:

Certificates from psychoneurological and narcological dispensaries indicating the inability of the testator to adequately assess the situation.
Court decisions recognizing the testator as having limited legal capacity or incapacity.
Witness's testimonies.
Results of post-mortem examination.
Other evidence confirming the illegality of the will, for example, letters or video recordings, from which it can be concluded that there is reason to consider it invalid.

For your information

The deadline for challenging in accordance with Art. 181 of the Civil Code is 3 years for a void will and 1 year for a contested will.

If a will is declared invalid, the testator's property is distributed in accordance with the previous will, if any. If there is no previous will, then the inheritance is distributed according to the law.

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 open an inheritance case with a notary?

Challenging a will by first-degree heirs

If citizens claiming property as first-priority heirs do not agree with the order of distribution, their right to challenge takes precedence.

Methods of contact:

Through a notary.
In a court.

Important! The right to challenge the will of the testator is valid for a year, with the presentation of evidence through the court, if there is reason to suspect violent actions, pressure on the testator, blackmail (Article 181 of the Civil Code of the Russian Federation). Three years are given to file claims regarding the legality of drawing up a testamentary disposition by a notary (errors in the text, certification signature, establishing the insanity of the testator).

The procedure for receiving inheritance of cash deposits

The moment the period for the possibility of challenging begins to count will be the establishment of a violation of the rights of the heir. A claim can be filed in court during the first six months allotted for identifying applicants for the inheritance, until the certificate of inheritance is issued at the notary's office.

If the requirements for the procedure are met, the direct heirs still have a chance to claim rights to an obligatory share in the property.

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.

Time limits for challenging

Depending on the grounds for the challenge, the period is calculated according to Art. 181 of the Civil Code of the Russian Federation and amounts to:

1 year for contested wills;
3 years for void wills.

The calculation of the period begins from the moment the inheritance is opened. However, in some cases, it is possible to calculate the period from the moment when the interested party learned (in fact should have known) about the violation of its rights.

Due to frequent updates to legislation and the legal uniqueness of each situation, we recommend obtaining a free telephone consultation with a lawyer. You can ask your question by calling the hotline number 8 (800) 555-40-36 or write it in the form below.

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.

In what cases can a will be challenged?

The testator has the right to simply change his decision regarding the distribution of property between the heirs.

Taking these reasons into account, we can safely divide them into two large groups:

Are common. These include: Dementia, which can occur in old age;
One of the forms of mental disorder, due to which a person simply did not realize what exactly he was doing;
Situations when a person’s true will does not correspond to that indicated in the papers;
Health status. If at the time of signing the will, its author was using alcohol or drugs;
Other violations committed during the execution of the will;
Contradictions of the entire document or one of its points.

Special. These grounds are closely related to the key rules for making wills. These include:

Drawing up all necessary papers on behalf of a group of persons;

Violations committed in gross form. These include the absence of a seal, signature or date;

Fraudulent transactions or threats at the time of signing all necessary documentation;

Forged signature on papers;

If a person's last will was expressed through his immediate representative;

There are no witnesses if the situation requires their presence;

When one or more officials do not have the right to put seals and signatures on documents.

When can a will be contested?

Read about challenging inheritance under a will here.

Is it possible to challenge your father's will? Read this link:

You can prove that the testator suffered from mental disorders or other disabilities. However, this is very difficult to do; it is necessary to provide an evidence base.

If you succeed in doing this, the accusation will be directed at the notary who carried out the process of registering the transaction with a sick or insane person. How to prove a person’s insolvency at the immediate moment of signing a will?

It is necessary to study medical documentation for the last few years of life, the fact of taking medications is taken into account, and a direct process of interviewing witnesses is carried out. The results will become key evidence about the physical as well as mental state of the testator at the time when all the papers were signed.

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.

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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.

When can you disinherit under a will?

Persons who have the right to inheritance, but are deprived, can go to court to protect their rights. There are several reasons for challenging an inheritance:

If you find out and can confirm that the will was written under duress.
If it is necessary to allocate a mandatory share of the inheritance to a minor.
The will is written by the testator if he was declared incompetent by the court at that time.
If it is necessary to recognize the person who received the inheritance as an unworthy heir.
Allocate the spousal share of the inheritance.
Divide property between heirs. For example, an inheritance left indivisible property (a car) or 2 apartments, one of which is one-room, the second is two-room, each of the heirs has a share in each apartment. They cannot come to a single agreement. The only way out is to go to court.
If the person who accepted the inheritance is recognized as an unworthy heir.
There is another copy of the will, drawn up later than the disputed one.

A person may be recognized as an unscrupulous heir and deprived of the right to claim it. In the modern world, especially when it comes to real estate, fraud is becoming increasingly popular. So, for example, a person (relative, neighbor or other) begins to care for a disabled patient. He, in turn, seeing the good attitude towards him, leaves a will. After this, all care for the disabled person ceases, the person avoids caring for him in every possible way. But after death he enters into inheritance. In this case, deprivation of inheritance will be carried out not on the basis of any actions, but for inaction.

Another situation. A son kills his father in the heat of a quarrel. By force of law he is recognized as an heir. But, given the act, he will be recognized as an unscrupulous heir.

A parent may also be considered dishonest if he claims to inherit after a deceased child, but was deprived of parental rights or did not pay child support in respect of him. A person who conceals the presence of other heirs who, according to the law, are entitled to a mandatory share, may also be considered unworthy.

In all of the above examples, unworthy heirs will not be able to claim even part of the inherited property.

Based on the law, a person recognized as an unscrupulous heir is obliged to fully return the property if the court decision came into force after entering into the inheritance.

IMPORTANT! It is possible to challenge a will only after the death of the testator.

When a will is drawn up, one of the main conditions for recognizing it as valid is the state of mind of the testator. When drawing up a will, the notary must check this fact. But in practice he does not always succeed; he is limited in his capabilities. A notary can check the adequacy of the testator only in a personal conversation, asking him questions and receiving sane answers.

When the testator hides this fact, and the notary cannot recognize the real condition based on the signs, the will is certified. If a person at the time of drawing up a will was insane or deprived of legal capacity, or did not account for his actions, the will is invalid. Only an interested person whose interests have been violated makes an application to challenge the will. After a positive court decision to invalidate the will, inheritance occurs in a legal manner.

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 has the right to challenge a will?

Clause 2 of Article 1131 of the Civil Code of the Russian Federation - a will can be declared invalid in court. The heir has the right by law to question the papers; he would have received the inheritance if the relative had not donated the property to someone else. This applies to the first line of inheritance, that is, close relatives: wife/husband, children and parents of the citizen for whom the will was drawn up.

If there are no close relatives who come first, then this right goes to other close people of the deceased. In total, according to the law, there are 8 queues for receiving an inheritance. From a theoretical point of view, the right to challenge a document looks exactly like this; in practice, all of the above restrictions can safely be called conditional.

If there is an indisputable evidence base, in practice, interests can be defended and this certainly does not depend on the degree of relationship.

The current legislation provides a list of heirs who have the right to own part of the testator’s property and it does not matter at all whether the name of this person was indicated in the document or not.

This list includes:

Ascending relatives: disabled parents, dependents who may or may not be related to the testator;
Relatives in the descending line: first of all, these are children who have not yet turned 18 years old, a disabled husband, and also disabled children.

In this case, we are talking about a mandatory part of the inheritance, which usually causes litigation between the heirs.

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.

Deadlines

The period for challenging a will is equal to the limitation period for invalid transactions provided for in Article 181 of the Civil Code of the Russian Federation.

According to a will that is void (drawn up with violations or by an incompetent person), the statute of limitations during which a claim can be filed in court is 3 years .
According to the will, if its invalidity is contestable (using threats, violence, deception, etc.), the period during which the court can accept the claim is 1 year .
These periods are counted from the moment when the plaintiff learned or should have learned that his rights to receive an inheritance were legally violated.

You need to file a claim to invalidate a will as soon as possible. It is better if this happens within six months from the date of opening of the inheritance, until the heirs under the will have entered into inheritance rights and are unable to dispose of the bequeathed property.

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 topic: Inheritance of loan debts

When can you challenge a will?

A will can be contested only after the death of the testator has been recorded and the inheritance has subsequently been opened. While the testator is alive, this cannot be done.

The time limits for challenging a will correspond to the limitation periods for invalid transactions provided for in Article 181 of the Civil Code of the Russian Federation:

three years - upon proof of the nullity of the will (drawn up with violations or by an incapacitated person);
one year - if it is contestable (threats, violence, deception were used when drawing up).

The period begins from the moment when the pretending heir learned about the circumstances of the violation of his inheritance rights.

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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.