Law and law: recognition of a will as invalid

достаточно обширна. The practice of recognizing a will is void enough. Legislation in this connection contains a list of grounds according to which interested persons can apply to authorized bodies for the cancellation of the document fixing the last will of the owner. . Let's consider further, how recognition in court of the will is carried out void .

Characteristic

The will is a document expressing the last will of the owner of the property. Its preparation is classified as unilateral transactions. Accordingly, when drawing up a document, general rules must be observed. может быть подано исключительно после смерти наследодателя. A statement of claim for the recognition of a will as invalid may be filed only after the death of the testator. This requirement is conditioned by the fact that during the life of the owner's orders are not subject to execution, respectively, they can not be challenged. могут лица, чьи непосредственные интересы (по их мнению) были ущемлены этим документом. The persons whose immediate interests (in their opinion) were infringed by this document may impose the claim on recognizing the will . If the rights of entities that are fully or partially incapacitated are violated, then their legal representatives (trustees) can apply to the instance.

Common grounds

The will can be partially or completely invalidated. The procedure is carried out according to the procedure established in the law. The grounds for conducting it can be general and special. допускается, если: In the first case, the recognition of a will is null and void if:

1. The document was issued in violation of the requirements of the law.
2. The testator is limited or completely incompetent.
3. At the time of the transaction, the owner could not manage his behavior.
4. Compilation of the document was carried out under the influence of deceit, threat, etc.

Special grounds

Their list is more extensive. The most popular special reasons include:

1. Absence of a document containing the last will. The will must be submitted in writing. If the will of the subject was expressed orally, then it has no legal force. Accordingly, any actions aimed at its implementation, in this case, will be illegal.
2. Non-compliance with the requirements for document certification. In drafting a will, a notary or other person who has the authority to certify the document participates. In the absence of an appropriate mark, the transaction can be challenged.
3. The presence of improper witnesses when signing, drafting, certifying, transferring a will. It is worth noting that these persons are invited to the procedure at the discretion of the testator. However, the law provides for cases when their presence is mandatory. Inadequate witnesses will be citizens who certify the will, interested persons, their relatives, subjects, who are limited or completely incompetent, illiterate, foreigners who do not speak the owner's native language.
4. Absence of signature of the testator. The exception is cases where it has the right to put an official handler because of the lack of the owner's physical ability to do it themselves.
5. Absence of witnesses when they are required by law.
6. The signature of the testament by a manual appraiser acting as an interested, certifying person who is incompetent (partially or completely), illiterate, a foreigner who does not speak the language,
7. The execution of the document is not at the hands of the testator. This refers to the compilation of another subject, using various technical means, etc. This provision applies to cases where the will is closed or is drawn up in an emergency situation.

Classification of inadequate documents

The will can be:

1. Void. This is recognized as a document issued in violation of the form or incapacitated subject. Initially, it has no legal force. не выносится. In such a situation, the decision to recognize a will is not valid . However, the fact of nullity must be confirmed. This is done through the adoption of a definition.
2. Indisputable. Such a document must be declared invalid by a court of law in accordance with established rules.

Stages

How is the recognition of the will invalid? по таким делам основывается на нормах ГПК. Judicial practice in such cases is based on the norms of the CCP. At the first stage, the necessary materials, evidence, written evidence are collected. They can be the certificates of medical institutions, in which the testator was treated, video and audio recordings, judicial decisions. Legislation allows the involvement of witnesses. All the arguments that the interested person will lead should be reliable and objective. . After the necessary evidence is collected, the citizen makes a claim for recognizing the will as invalid . Examination can be carried out as part of the consideration of the case on the initiative of either party. At the end of the process, the court issues a decision.

Features of the request handling

When drafting a lawsuit, it is necessary to follow the instructions of the law. The document must contain mandatory details listed in the norms. They include:

1. The name of the court that is authorized to hear the case.
2. Full name of the person whose rights are violated, his place of residence, contact details. Phone is required, e-mail address. Mail - at the discretion.
3. Information about the defendant (defendants).
4. Information about third parties that declare or not claim.

The text of the dispute should be clearly described. должно быть составлено официальным деловым языком. The application for recognizing the will must be drawn up in an official business language. Emotional expressions in the text should be avoided. Experts recommend to study the rules governing inherited legal relations. This will reinforce its arguments with references to legislation. The applicant's requirements must also be clear and unambiguous. At the end of the document, the date of compilation and signature is put. The claim is accompanied by all collected materials. At the same time, their number should correspond to the number of parties to the case.

Specificity of examination appointment

In some cases, certain circumstances may complicate the recognition of the will as invalid. показывает, что в таких случаях для устранения препятствий назначается экспертиза. Judicial practice shows that in such cases an expert examination is appointed to remove obstacles. For example, if there is a dispute about the mental capacity of the testator, it becomes necessary to involve qualified specialists in the process. They conduct a posthumous examination and make a conclusion.

An Important Moment

It should be borne in mind that the court can refuse to satisfy the request for an expert examination. In this case, the authority issues a definition in which it justifies its conclusions. If one participant insists on the examination, and the second - against, the court must consider their application and make a decision. If the procedure is carried out on the initiative of the subject who filed the claims, and he will win, then the payment for the work of a specialist is vested in the defendant.

Participation of the parties in the examination

In accordance with the law, the plaintiff and the respondent can:

1. Make a list of questions to the specialist.
2. Choose a specific expert or organization.
3. To declare a challenge to a specialist.
4. To study the definition of the appointment of an examination, as well as a list of issues to be clarified.
5. Read the conclusion.
6. To apply for a review of the results of the procedure performed.

The norms provide for other possibilities for the parties.

Timing

The requirement to confirm the nullity of the will may be filed within 10 years from the death of the person who made it. To challenge the law provides for a shorter period - 1 year. . The calculation of this period starts from the date when the person whose rights are infringed received information on the basis of which the law allows the recognition of the will to be invalid . As such a moment, the day of opening the hereditary case will not necessarily take place. The plaintiff may become aware of the relevant information after this date.

Effects

не предполагает лишения наследства лиц, имеющих право на него по закону. The recognition of a will as invalid does not imply the deprivation of the inheritance of persons entitled to it by law. These entities can receive the property due to them, according to the order stipulated in the law. In a number of cases, before drawing up the contested document, another one was drawn up. In this case, the previous will is restored in force.

Counterclaim

, удовлетворяя требования одного участника, может в то же время ущемлять права другого. The recognition of a will as invalid , satisfying the requirements of one participant, may at the same time infringe the rights of another. In this situation, the latter is given the opportunity to send a counterclaim. The application is made according to the rules provided above. In this case, the interested entity must also attach documents and other materials to it, confirming the validity of its claims. The law also provides the citizen with the opportunity to file a petition for an expert examination or to challenge the results of an investigation that has already been carried out.

Deprivation of an obligatory share

The law establishes a list of persons who receive part of the inheritance, regardless of the content of the will. If in its last will the owner did not provide for the allocation of an obligatory share, then the document can be challenged. To persons who inherit in any case, include minor children, disabled parents, spouse, dependents. The latter can count on the share of property only if they lived together with him for at least a year before the death of the owner. When applying, you must attach the sv-va on birth / marriage, documents certifying incapacity for work of the spouse / children or being dependent.

Highlights of Evidence

When challenging a will, according to the 1131st article of the Civil Code (clause 3), clerks, insignificant violations of the rules for the execution of a will, which do not affect the understanding of the will expressed in it, will not act as grounds for recognizing the document as invalid. If the authority authorized to consider the case finds that the existing shortcomings do not create obstacles for an unambiguous interpretation of the content of the act, the demand of the interested person will not be satisfied. The facts that need to be proved include:

1. Presence of a will.
2. Death of the owner. As evidence, a certificate is issued by the registrar's office.

The claim will be rejected if it is filed after the death of the testator, but before the case is opened.