Grounds for challenging a will: failure to comply with the prescribed form, capacity to draft a will, content of the will, and so on. Before discussing the challenge of a will, however, let us state what a will is. A will is the document by which a person personally designates their heirs and also regulates certain family-law relations. In statute it is also referred to as a “disposition of last will” or “last disposition”. A will is drawn up in person in accordance with certain forms and may be freely revoked. The effects of a will are produced only after the death of the testator (the person to whom the will belongs). For a will to be valid it must be drawn up in accordance with one of the forms prescribed by law. In particular, the Civil Code (AK) provides for three ordinary forms of will, namely the holographic, the public and the secret will, as well as forms of extraordinary wills which, under certain conditions, are drawn up on board a ship, on a military campaign, or in case of blockade.
A holographic will is one which is written in its entirety by the hand of the testator, dated and signed by him. It does not require any solemn formalities, it is cost-free, third parties learn neither its content nor that it has been drafted, and it can be adjusted at any moment when the testator believes that his last wishes have changed. The testator may also deposit the will with a third party for safekeeping or with a notary public, by way of the simple procedure of depositing documents.
The public will is drawn up by way of the testator declaring his last will before a notary public and three witnesses, or before two notaries and one witness. The advantages of the public will are that, in this form, persons who can neither write nor sign may also draw up a will; the risk of theft by third parties or loss of the will is averted; the risk of the will being annulled due to ambiguous wording is reduced; and it carries the evidentiary weight of a public document. The public will, however, also presents significant disadvantages compared with the holographic will. In particular, breach of any of the formalities required by law renders the will null and void, even if the testator’s declaration of will has no defect whatsoever. This risk, together with the fact that third parties will hear the testator’s last declaration of will, deters many from choosing this form of will. Finally, the costs entailed by this form of will are also a deterrent factor.
The secret will constitutes an intermediate form between the holographic and the public will and is drawn up in two stages: in the first stage of drafting the secret will, the testator draws up a document containing his last will, and in the second stage the testator personally delivers this document to a notary public, in the presence of three witnesses or in the presence of a second notary and one witness, with a declaration that it contains his last will. The principal advantage of the secret will, which it shares with the public will, is that it may be deemed null and void on a purely formal ground or for failure to observe a particular formality in the procedure followed before the notary. However, the legislator provided that, if a secret will is annulled because of a defect in the notarial deed, it shall then be valid as a holographic will, provided that it is valid as a holographic will, under certain conditions. The secret will is advantageous compared with the holographic will, because it remains with the notary and the risk of loss or theft is thus averted. However, it also has the principal disadvantage of the holographic will, since there is a possibility that the document delivered to the notary may contain ambiguities, which may lead to the annulment of the will. Conclusion:
What does challenging a will mean?
The will is essentially the document by which a person regulates to whom and how their estate will be distributed after their death. However, disputes and friction often arise among the heirs concerning the validity of the will. The law therefore provides, under certain conditions, for the right to annul the will in whole or in part.
In what cases may a will be challenged?
The Civil Code (AK) provides for various grounds leading to the challenge of a will. These grounds may concern either the failure to observe the form prescribed by law, or the capacity to draft the will, or the content of the will, depending also on the form of the will.
When can a holographic will be annulled?
A holographic will is one which is written in its entirety by the hand of the testator, dated and signed by him. This means that if any one of the above formal elements is missing, it may be annulled.
In particular, it may be annulled if, for instance, a third party guides the writing movement of the testator’s hand, or if the testator himself, being illiterate, simply traces over text already written by a third party. A will may also be annulled if it is drawn up using a mechanical means, e.g. a computer or a tape recorder, or on a digital disc (CD).
As regards the date, this must be complete, that is, the day, month and year must be apparent. If any of the above elements is missing, then an issue arises as to its validity.
If the testator’s signature is missing, the holographic will is null and void. As mentioned above, the signature must be in the testator’s own hand and must contain the first name and surname. If, that is, it is affixed by mechanical means, e.g. a stamp, or placed in another manner, e.g. a fingerprint or a cross, the will is deemed null and void. Finally, as a rule, the signature is placed at the end of the will and not at its beginning or middle, otherwise there is a possibility of annulment.
Where there are deletions, erasures or other external defects in the will, annulment may result if any of these alterations renders the will unintelligible or makes it appear to be a “draft” of a will.
A holographic will may also be annulled if the testator was incapable of drawing it up. Persons incapable of drafting a holographic will are those who are unable to read handwriting, either due to weakness of the eyes or due to inability to read, and who copy without knowing what they are copying. This case applies because the testator must be able to check what is being written and to ascertain whether it corresponds to his wishes.
When can a public will be annulled?
A public will may be annulled if it has not been drawn up in accordance with the legal formalities, where these are prescribed by law. To begin with, the law provides for impediments concerning the person of the notary and of the witnesses, which lead to the nullity of the public will. For example, the testator’s spouse or relative cannot participate in the drafting of a will as notary or witness.
Furthermore, an heir benefiting under the will cannot participate as notary or witness. As regards witnesses, persons without sight or hearing cannot participate, since they can neither verify the identity of the persons signing nor hear the will when it is read; nor can persons connected to the notary by an employment relationship participate as witnesses. Finally, minors, that is, persons under 18 years of age, cannot participate as witnesses. All the above cases bring about the nullity of the will.
As regards the testator himself, a mute person, a deaf-mute person or a person otherwise prevented from speaking cannot draw up a public will. This provision applies because the law requires, for the drafting of a public will, the oral declaration of the testator before the notary public.
When can a secret will be annulled?
A secret will may be annulled when the legal provisions concerning either the document drawn up by the testator, or the procedure followed before the notary public, or the deed drawn up by the notary, are not fulfilled.
For example, the document drawn up by the testator must, before being delivered to the notary, bear his signature; otherwise the will may be annulled. The same applies if the notary’s annotation on the sealed document is not signed by the testator, the notary and the witnesses. As regards the deed drawn up by the notary, this must contain all the elements required by law, such as the date, the place of drafting, the identification of the testator, the full name of the notary, the certification of delivery, etc.
A special case of nullity of the secret will is provided for in the provision of Article 1748 of the Civil Code (AK), where it is drawn up by a person who is unable to read for any reason.
For what other reasons may a will be challenged?
The law provides for various grounds on which a will may be annulled, irrespective of its form.
One of these concerns the capacity of a person to draft a will under Article 1719 of the Civil Code (AK).
Persons incapable of drafting a will are minors, those placed under judicial assistance with full deprivation of their legal capacity to perform juridical acts or with express deprivation of the capacity to draft a will, as well as those who, at the time of drafting the will, do not have consciousness of their acts or are in a state of mental or psychiatric disorder which decisively limits the functioning of their will.
The provisions of Article 1782 paragraphs 1 and 2 of the Civil Code (AK) and of Article 1784 of the Civil Code provide for cases in which the testator may have “fallen victim” to mistake, fraud or threat. In such cases, the will may be annulled.
Furthermore, the provisions of Articles 174 and 178 of the Civil Code (AK) provide for the possibility of annulling a will when its content is contrary to the law or to morality.
Finally, a special case of annulling a will is provided for in Article 1786 of the Civil Code (AK), where the testator omitted a forced heir, being unaware of his existence. The purpose of this provision is to protect the intestate succession right of the forced heir who was omitted without the testator’s knowledge.
Challenging a will: procedure, conditions, time limit. Annulment of a will for mistake, fraud or threat against the testator.
Mistake is understood as the situation in which the testator agrees with his own will, but that will was formed on the basis of either erroneous representations or ignorance of facts. For example, a testator may have drawn up a will in which he leaves no part of his estate to a relative, on the assumption that the relative runs a successful business and faces no financial difficulties, whereas the business has in fact been declared bankrupt.
A will may also be annulled if it is the product of a threat exercised unlawfully or contrary to morality. A threat is understood as the exercise of psychological violence, that is, influencing the testator’s will by announcing harm which will be inflicted either on the testator himself or on a third party, unless he draws up the will in accordance with the wishes of the person making the threat.
Finally, a will may be annulled if it is the result of fraud. Fraud is understood as deceitful conduct which causes the testator to be mistaken, either by representing false facts as true or by concealing true facts, with the aim of leading the testator to draw up a will. For example, a case of fraud arises when a person falsely promises to provide the testator with services for the rest of his life, or deliberately fosters in the testator hostility towards other relatives.
What is the procedure for challenging a will?
Where any of the above grounds exists, there is a possibility of annulling the will by a person who has a legal interest. In particular, under the provision of Article 70 of the Code of Civil Procedure (KPolD), it follows that a declaratory action may be brought for the nullity of the will, on condition that the interested party-plaintiff has a legal interest.
In essence, the testator’s intestate heirs have a legal interest. The relief sought in the declaratory action is the recognition of the nullity of the will on the aforementioned legal grounds.
What is the time limit for challenging a will?
According to Article 1788 of the Civil Code (AK), “The right to annul a disposition of last will is extinguished after two years from the publication of the will.”
This two-year (2) time limit for challenging a will applies exclusively to cases of mistake, fraud and threat, and to the case of omission of a forced heir.
In all other cases, the bringing of a declaratory action for annulment of a will is not subject to any time limit and, according to case-law, is subject only to the twenty-year limitation period (Areios Pagos 1350/2014).
Where the testator leaves an asset to the State or to a charitable purpose, the time limit for annulling the will is five (5) years from its publication.
What applies after the annulment of a will?
Once the will is annulled by the Court, it is deemed not to exist, and inheritance proceeds by way of intestate succession, with the heir(s) accepting the inheritance through a notarial deed of acceptance of inheritance.
Legislation concerning challenging a will (Civil Code)
Article 1784 — A disposition of a will is voidable if it was the result of mistake arising from causes mentioned in the will and relating to the past, the present or the future, without which the testator would not have made the disposition.
Article 1785 Disposition in favour of the spouse — A disposition in the will of the deceased in favour of his spouse is, in case of doubt, voidable if the marriage between them is null or was dissolved while the testator was alive, or if the testator, having a valid ground for divorce, had filed a divorce action against his spouse.
Omission of a forced heir — The will is voidable if the testator omitted a forced heir who existed at the time of his death and whose existence was not known to him at the time of drafting the will, or who was born or became a forced heir after its drafting. Annulment is precluded where it is proven that the testator would have proceeded with the drafting of the will even if he had known the actual situation that existed or that subsequently arose.
Who may seek annulment? — Annulment of a disposition of the will in the cases of Articles 1782 to 1785 may be sought only by the person who is directly benefited by its annulment, and in the case of the previous Article only by the forced heir who was omitted. The provision of Article 145 does not apply to the annulment of a disposition of a will.
- See also article Tenant Eviction
- See also article Change of Name
- See also article Payment Order
- See also article Divorce
- See also article Certificate of Inheritance
- See also article Renunciation of Inheritance by a Minor
- See also article Joint Custody of a Child
FREQUENTLY ASKED QUESTIONS ON CHALLENGING A WILL
1. In what cases can I challenge a will?
A will may be challenged in several cases. As a rule, the grounds for annulment relate either to formal defects (failure to comply with the form prescribed by law for a holographic, public or secret will), or to the testator’s capacity (minority, judicial assistance, lack of consciousness of his acts at the time of drafting), or to defects of will (mistake, fraud, threat under Articles 1782-1784 of the Civil Code (AK)), or to the content being contrary to the law or to morality (Articles 174 and 178 of the Civil Code). A special case is the omission of a forced heir without the testator’s knowledge (Article 1786 of the Civil Code). The examination of the factual circumstances by a lawyer determines which ground is well-founded.
2. What can I do if I suspect a will is forged or the product of deception?
The law allows the affected heir to bring a declaratory action for nullity or annulment of the will before the Court of First Instance, seeking recognition that the document produces no legal effects. In parallel, where there are indications of forgery, a criminal complaint is filed with the Public Prosecutor at the Court of First Instance and a handwriting expert examination is carried out on the original. Where the testator has been influenced by fraud or threat from a third party, this is proven by witnesses, medical documents, electronic correspondence and any suitable means. In urgent cases, interim measures are also available to safeguard the estate property until the issuance of a final judgment.
3. What is the time limit for challenging the will?
The time limit depends on the ground for annulment. For cases of mistake, fraud and threat, as well as the omission of a forced heir, a two-year limitation period applies from the publication of the will (Article 1788 of the Civil Code (AK)). For wills in favour of the State or charitable purposes, the time limit is five years. For all other grounds (lack of form, incapacity of the testator, contrariety to the law or to morality) no special time limit is set, and the twenty-year limitation period applies (Areios Pagos 1350/2014). Because the time limits run from publication and not from when the interested party becomes aware, immediate action is required as soon as a suspicion arises.
4. What documents and evidence do I need?
One must first gather the record of publication of the will from the Court of First Instance, the will itself (or a certified copy), the death certificate, certificates of next of kin and closest relatives, as well as documents establishing the family relationship and the legal interest. Where incapacity of the testator is alleged, the medical file, health booklets, opinions on dementia or psychiatric disorder, prescriptions, and testimonies of relatives and treating physicians are of vital importance. Where forgery is suspected, a handwriting expert examination on the original is required. In cases of fraud or threat, messages, witness statements, bank transactions and any indication of influence on the will are useful.
5. What chances of success does the action for annulment have?
The outcome depends decisively on the ground for annulment and the quality of the evidence. Where there is a clear formal defect (lack of date or signature in a holographic will, participation of a non-permitted witness in a public will), the chances are strong, as the law expressly provides for nullity. More demanding are cases of incapacity and defects of will, where the burden of proof lies with the plaintiff and the matter is judged on the basis of the overall situation at the time of drafting. In cases of omission of a forced heir, it suffices to prove the testator’s lack of knowledge. A realistic assessment of the chances is made only after a lawyer specialising in inheritance law has studied the file.
6. What is the role of the lawyer in a case of challenging a will?
The lawyer first examines whether a lawful ground for annulment exists and whether the time limits are observed, so as to avoid loss of rights. They draft and bring the declaratory action before the Court of First Instance, prepare the case file, propose witnesses and expert witnesses (medical, handwriting), represent the heir throughout the proceedings, and handle any related criminal proceedings (forgery, embezzlement of estate assets). Following the issuance of a judgment annulling the will, the inheritance succession is reversed and the lawyer arranges for the drafting of a notarial deed of acceptance of intestate inheritance, the registrations of title, and the protection of the estate assets in the meantime.