A will is an important legal document that determines how property will be distributed after the death of its owner. A will allows a person to express their last wishes and establish the procedure for transferring assets. However, the will of the testator may not always be fully realized. There are situations where a will may be challenged, for example, due to a violation of formalities, the incapacity of the testator, or the influence of third parties. In this article, we will look at the basic concepts of a will, the procedures and grounds on which it can be challenged, and the process and consequences of challenging a will in court.
What Document is Called a Will
A will is an official document that expresses a person’s will regarding the disposition of his property after his death. The persons specified in the will become heirs. Heirs may apply to a notary’s office to obtain a certificate of inheritance within six months from the date of the testator’s death.
To whom Can Property be Bequeathed
The testator has the right to transfer his property to anyone other than his next of kin. He can specify any individuals, companies, or states in his will.
Which Persons Can Challenge the Will
Persons who believe a will violates their rights or legitimate interests may challenge it. They must prove that such violations are taking place.
Those who can challenge the will are entitled to a mandatory share of the inheritance, regardless of the contents of the will, but are faced with a refusal to receive it. Persons who are entitled to a mandatory share in the inheritance include:
- Minor children of the testator.
- The testator’s disabled children.
- The disabled testator’s spouse.
- The testator’s disabled parents.
The mandatory share in the inheritance is not less than half of the share that the specified heirs would receive upon inheritance by law.
Most often, a will is challenged by:
- People who consider themselves heirs.
- Persons who have already inherited.
- Guardians of incapacitated heirs.
If you have doubts about the will’s legality or its contents, we recommend you consult our experienced inheritance lawyer.
Time Limits for Challenging a Will
Heirs do not have the right to challenge the will until the opening of the inheritance, that is, until the testator’s death.
If a person believes the will has violated his rights and interests, he can file a claim in court. The claim is filed either at the place of residence of the heir in whose favor the will was drawn up, or at the location of the real estate, if the will concerns immovable property.
Our experienced inheritance lawyer will advise on preparing a statement of claim, protect your interests in court, and represent your interests.
Examples of Cases where a Will is being Challenged
A person who challenges a will must prove in court that the will or its provisions are invalid.
It makes sense to challenge the will in the following cases:
1. Non-compliance with the requirements for the form of a will
A will must be drawn up in writing and certified by a notary public. In some cases, the will may be certified by officials of certain institutions. For example, if the testator is in a hospital, the chief physician can certify the document. The testator himself must sign a will.
2. Violation of the signing procedure
If the testator cannot sign the document due to illness or physical limitations, it may be signed by another person. When the procedure for signing a will is violated, this may become the basis for challenging it.
3. Absence or inconsistency of witnesses
In some cases, the presence of witnesses is required when drafting, signing or certifying a will. They must meet the established requirements. If a person who does not meet these requirements acts as a witness, this may serve as a basis for declaring the will invalid.
4. Invalidity of a will due to the incapacity of the testator
If the will is drawn up by a person declared legally incompetent, the court will cancel the will.
5. Inability to be aware of your actions
Even if the testator is not recognized as legally incompetent but could not realize the significance of his actions and control them at the time of signing the document, the will can be challenged.
6. Coercion, deception, or abuse of difficult circumstances
If the will was drawn up under pressure, threats, deception, or difficult living conditions, it may be declared invalid.
7. Violation of the rights of persons with a mandatory share in the inheritance
If the interests of persons who are entitled to a mandatory share of the inheritance (for example, minors or disabled dependents) were not taken into account when making a will, this may become the basis for challenging it.
8. Ignoring the spouse’s property rights
It may be challenged if the will violates the rights of the spouse, who is entitled to half of the jointly acquired property.
These examples are only part of the possible grounds for invalidating a will. In case of doubt or dispute, it is recommended that you contact experienced inheritance lawyers. A specialist will advise you on the prospects of challenges and provide the necessary evidence.
How does the Court Handle Cases of Challenging Wills
The court’s review of a case challenging a will is a complex legal process that requires the participation of a lawyer. Let’s consider a step-by-step algorithm for challenging a will in Belarus.
Step 1: Determine the grounds for challenging
Before initiating legal proceedings, it is necessary to ensure that there are legitimate grounds. These include:
- Violation of the requirements for the form of a will.
- Disregard for the rights of the heirs of the obligatory share.
- Incapacity of the testator (incapacity, mental disorder).
- External influence on the testator (pressure, deception, abuse of trust) and other violations.
The basis must be confirmed by evidence: documents and witness statements.
Step 2: Get a lawyer’s advice
Contacting an inheritance lawyer will help you assess the case’s prospects, determine a strategy, collect evidence and prepare the necessary documents for filing a claim.
Step 3: Collect the evidence
A successful trial will require compelling evidence:
- Medical reports on the testator’s incapacity.
- Witness statements about pressure or deception.
- Documents that confirm that the will does not comply with the law.
Step 4: File a lawsuit in court
It is necessary to draw up a statement of claim to initiate legal proceedings. It indicates:
- The name of the court.
- The data of the plaintiff (applicant) and the defendant (heir).
- The contents of the will and the circumstances of its creation.
- The grounds of the claim are based on references to the legislation.
The collected evidence and a receipt for payment of the state fee are attached to the claim. The fee depends on the challenged property’s value: 5% of the claim price, but not less than two basic units (starting in 2025, 1 basic unit = 42 rubles, so the state duty is at least 25 euros).
You can file a statement of claim with our experienced inheritance lawyer.
Step 5: Participate in the trial
The process includes several stages:
1. Preparation for the meeting: The court examines the case file and sets a date for the hearing.
2. Court session: The parties present evidence and hear witnesses and experts.
3. Making a decision: The court decides based on the evidence presented.
You do not need to participate in the court session; a lawyer can represent your interests at all stages.
Step 6: Appeal the court’s decision
If one of the parties is not satisfied with the decision, it can be appealed within 15 days from the announcement date or receipt of the reasoning. It is better to entrust the drafting of a complaint to an experienced lawyer.
Step 7: Execute the court decision
If the decision is not appealed, it comes into force after 15 days and is subject to mandatory execution. The inheritance is distributed according to the law or the previous will if the will is declared invalid. If necessary, you can contact the enforcement authorities, and our experts will advise you on these issues.
What Happens to the Inheritance after the Will is Declared Invalid
The court may invalidate the will in whole or in part. If the court satisfies the claim for declaring the will fully or partially invalid, the inheritance is transferred to the heir who challenged it.
If a previously drawn-up and valid will exists, the cancellation of the subsequent invalid one means that the inheritance takes place according to the previous valid will.
If the will is declared invalid in full and there is no previous will, inheritance takes place according to the law and the established order of heirs.
Conclusion
A will is an important legal document that allows a person to dispose of their property in case of death. However, despite its legal force, a will can be challenged for various reasons, including doubts about its authenticity, violation of formalities during its drafting, or pressure on the testator. It is important to remember that challenging a will can be complex and require professional legal support.
We recommend contacting our experienced inheritance lawyers. Together with them, you will be able to understand the intricacies of legislation. Our lawyers will be able to protect your interests in the event of a challenge to the will, provide qualified assistance at all stages of the process, and provide you with maximum confidence and support.
Contact us
If you have any questions and disputes related to the will and inheritance in Belarus, we will be happy to help! Our long-term experience in the field of protecting citizens’ rights will help you resolve any disputes in this area.
- +37529142-27-19 (WhatsApp, Viber, Telegram);
- info@ambylegal.by.
