According to the law, there are three grounds for declaring a will invalid: 1) in which the will of the testator was not free and did not correspond to his will; 2) it was drawn up by a person who did not have the right to do so (the person does not have the required amount of civil legal capacity to draw up a will); 3) it was drawn up in violation of the requirements regarding its form and certification (lack of notarial certification or certification by persons who are equivalent to notarial certification, drawing up of a will by a representative, the absence in the text of the will of the date, place of its preparation, etc.).
So, article 1247 of the Civil Code of Ukraine defines general requirements for the form of a will, for example, its written form, indication of the time and place of its drawing up in it, the personal signature of the testator or the signature of another person in accordance with part 4 of Article 207 of the Civil Code of Ukraine, notarization or certification other officials and officials in accordance with Articles 1251-1252 of the Civil Code of Ukraine. In case of violation of such minimum necessary requirements in form and certification when drawing up a will, it is recognized as null and void, and recognition of its nullity in court is not required.
◉ An example from judicial practice
After the death of her mother, the daughter accepted the inheritance by submitting, within six months, an application for acceptance of the inheritance to a private notary who opened the inheritance case. After the end of six months, she applied to the notary for a certificate of the right to inherit by law. As it turned out, the defendant submitted a will to the notary, which was certified by the secretary of the village council, according to which her mother, in the event of her death, made a so-called order that “all her property, wherever it may be and what it does not consist of, the house and in general everything that will belong to her on the day of her death and to which she is legally entitled to bequeath to the defendant. The daughter applied to the court with a claim to invalidate the will on the basis that the legal requirements regarding the form and procedure of certification were not complied with when drawing up the will.
So, when drawing up a will, the requirements of the Instructions on the procedure for performing notarial acts by notaries of Ukraine were not complied with, namely, the will does not contain the date and place of birth of the testator, the full name of the official who attested the will is not indicated, and who read the will and whether it is the expression of the will of the testator, since the will was not written with his own hand, but with the help of generally accepted technical means.
➤ The court of first instance dismissed the claim. The position of the court
It follows from the will that it is certified by an official of the village council. However, for the performance of notarial actions by such persons, another instruction was developed and operated, designed for notaries. In this case, the attestation of the will had to take place in compliance with the requirements of the Instruction on the procedure for performing notarial actions by officials of the executive committees of rural, settlement, city Councils of People’s Deputies of Ukraine. The specified instruction, as amended on the day of drawing up the will, did not provide for the procedure for announcing the will aloud if it was drawn up with the help of technical means. The specified instruction stipulates that the place and time of its drawing up should be indicated in the will, however, clause 8 of this instruction establishes that notarial actions are carried out in the premises of the executive committee of the village council of people’s deputies, and if notarial actions are carried out outside the premises of the executive committee of the rural advice, then this is indicated in the document itself, indicating the exact one and an example of drawing up a will is given. That is, based on the text of the will and the requirements of the instructions, the place of attestation of the will is the executive committee of the Zhernoklevsky village council of the Drabovsky district of the Cherkasy region, while the will itself bears the seal of the local government, and it is also indicated in the will that the person who made the will lives in the village. Zhernoklevs, Drabovsky district, Cherkasy region. The will also contains the date of drawing up and signing it by the testator. A will, in accordance with the requirements of the Instruction, must have the date and place of birth of the testator, however, pointing out these errors, it is not disputed that the will was signed by the testator. In addition, the will itself states that the person of the testator has been established and her legal capacity has been verified. Regarding the name of the position of the person, and the body to whom the will is certified, the name of the position of the official who certified him is indicated in the will, indicated as “secretary of the village council”, the text of the will indicates that it is notarized by the executive committee of the village council of the Drabovsky district of the Cherkasy region.
At the same time, the place for the name of the village council is not filled in the name of the institution, and the name of the village council is not indicated in the title of the position of the person to whom the will is certified. However, the name of the institution can be seen on the seal affixed to the will where it is indicated – Zhernoklevsky village council of the Drabovsky district of the Cherkasy region. In this case, it is not proven that the person is not an authorized employee of the body whose seal is certified for his signature, the seal of the local self-government body – Zhernoklevsky village council of the Drabovsky district of the Cherkasy region, located at the place for the seal of the body that certifies the will, and carries information how the body (his official) certified the will.
Considering the above, in this case, the mistakes made in drawing up the will are not significant, and they cannot be a consequence of the invalidation of the will. The form of the will complies with the general requirements for the form of wills in Article 1247 of the Civil Code of Ukraine and mistakes made in its preparation do not indicate its nullity. Therefore, the claim cannot be satisfied.
The person filed an appeal and the decision of the court of appeal changed the decision of the first instance. The position of the court.
Only in the event that, during the court examination, it is established that the person has no will to draw up a particular will, the court can invalidate such a will.
If, in court proceedings, it is established that the will was drawn up by a person who did not have the right to do so, or it was drawn up in violation of the requirements regarding form and certification, then such a will is null and void, that is, invalid by virtue of law, and the court has no reason to recognize it as invalid. as a contested transaction.
Taking into account the above legislative norms and the legal opinions of the Supreme Court, in the circumstances of this case, the Court of Appeal concluded that the disputed will in this case, by virtue of the provisions of Part 1 of Article 1257 of the Civil Code of Ukraine, is null and void, since it has shortcomings in its certification – despite that it was written in typewritten text (a typewriter on a pre-prepared form), the testamentary disposition was not read out to the testator.
This circumstance is of significant importance, because provided that the testator did not write the text of the will with his own hand (as in this case), reading it out loud is the only way to make sure that the testator is fully familiar with his order regarding the estate.
At the same time, the panel of judges rejected the appellant’s references as one of the grounds for recognizing the aforementioned will invalid, and the fact that it incorrectly indicates the place of its preparation and certification is unfounded, since the current legislation does not bind the validity or invalidity of the will with the given circumstance. The Supreme Court came to a similar conclusion in its ruling dated 01.07.2020 in case № 637/228/17.
So, since the panel of judges of the appellate instance established that the disputed will is null and void by virtue of the requirements of the law, therefore, it does not create any legal consequences, and its invalidation is an ineffective way to protect the violated rights of the plaintiff, therefore, the claim should be rejected.
Author: Iryna Leiko
lawyer, head of family law practice
«Prikhodko & Partners» Law Firm