Prepared by the Higher School of Advocacy of the National Bar Association of Ukraine.
Regarding claims for invalidating a will based on the violation of its certification procedure
Decision of the Supreme Court in the composition of the panel of judges of the Second Judicial Chamber of the Cassation Civil Court dated April 23, 2025 in case No. 183/1446/17
In the case under review, the plaintiff, when appealing to the court, referred to the fact that during the certification of the will, the private notary violated the Procedure, did not verify the legal capacity of the person applying for the notarial act, did not ensure after the conversation with PERSON_3 about her ability to understand the meaning of her actions.
The courts found that the will stated that due to the fact that PERSON_3 personally could not sign the will due to illness, at her personal request, in her and the notary’s presence, PERSON_8 signed the will, which complies with the requirements of Article 1247 of the Civil Code.
The will, in accordance with Article 1253 of the Civil Code, was certified in the presence of witnesses: PERSON_9, PERSON_7, with the inclusion of information about them in the text of the will. Each witness read the will aloud and then signed it, confirming the testator’s expression of will.
Having established that during the certification of the contested will, the notary complied with the provisions of Articles 1247, 1248, 1253 of the Civil Code, and the plaintiff did not provide the court with proper and admissible evidence of violations of the law in its preparation or certification, the courts concluded that there were no legal grounds to satisfy the claims.
By refusing to satisfy the claim for the reasons given, the courts did not take into account that the claim for invalidating the legal act is not a proper way to protect the right or interest of the plaintiff (see paragraph 41), which is an independent reason for rejecting the claim.
In case of a dispute regarding the legal consequences of an invalid legal act, one of the parties or another interested person considers it invalid, the court examines the relevant evidence and in the reasoning part of the court decision, applying the relevant provisions of substantive law, confirms or refutes the invalidity of the legal act.
Based on the above, the courts correctly rejected the claim, but erred in the reasons for such rejection, therefore the appealed court decisions need to be amended in the reasoning part, setting out their motives in the wording of this decision.
Source: https://reyestr.court.gov.ua/Review/127050171
Additional confirmation that the person at the time of drafting and signing the contested will understood the meaning of her actions and could control them is evidenced by the fact that she consciously bequeathed not all her property, but only a part of it
Decision of the Supreme Court in the composition of the panel of judges of the First Judicial Chamber of the Cassation Civil Court dated February 06, 2025 in case 937/4169/20
Taking into account the above, the appellate court, having established the factual circumstances of the case on which the correct resolution of the dispute depends, correctly applying the norms of substantive law, came to a reasoned conclusion that the plaintiff did not provide proper and admissible evidence that the testator at the time of signing the will did not understand the meaning of her actions and could not control them, her expression of will was not free and did not correspond to her will. According to the conclusion of the posthumous forensic psychiatric examination dated December 07, 2020 No. 482, at the time of signing the will on December 11, 2019, the degree of mental disorders of PERSON_3 was such that significantly affected (limited) her ability to understand the meaning of her actions and control them. That is, the categorical conclusion of the examination about the impossibility of the testator PERSON_3 at the time of drafting and signing on December 11, 2019 of the contested will in favor of PERSON_2 to understand the meaning of her actions and/or control them is absent. Thus, the presence of a serious illness only significantly affected (limited), but did not exclude the possibility of PERSON_3 understanding the meaning of her actions and/or controlling them, while the private notary Zemenkova Y.A., having verified the legal capacity and will of PERSON_3, had the right, on December 11, 2019, to certify the aforementioned will in favor of PERSON_2 at home at the address indicated in the will at her request.
Therefore, the contested will complies with the requirements of the law regarding its form and procedure for execution, as it was signed personally by the testator, it indicates the place of its preparation, the date and place of its certification by an authorized person who verified the legal capacity of the testator and clarified her true will regarding the disposition of property in case of her death.
In addition, the appellate court correctly noted that the additional confirmation that PERSON_3 at the time of drafting and signing the contested will on December 11, 2019 understood the meaning of her actions and could control them is evidenced by the fact that by the contested will PERSON_3 consciously bequeathed PERSON_2 not all her property (residential house ADDRESS_1; car ‘VAZ-211440’; land plot with an area of 6.0298 ha for commercial agricultural production, land plot with an area of 10.2397 ha for commercial agricultural production, located in the territory of Novodanilivska village council of Yakymivsky district of Zaporizhzhia region), but only a part of it in the form of the two aforementioned land plots.
The mentioned will of PERSON_3 is logical, consistent, and consistent with all the evidence presented by the parties in the case, explanations of the parties, and testimonies of witnesses.
Therefore, the Supreme Court agrees with the conclusions of the appellate court that there are no legal grounds for declaring the contested will invalid, as the plaintiff did not provide evidence of the absolute inability of the testator at the time of the legal act to understand the meaning of her actions, as the appellate court evaluated the conclusion of the examination as a whole and in connection with other evidence provided by the parties in the case.
Source: https://reyestr.court.gov.ua/Review/124965558
Insisting on the non-mandatory nature of the disputed certificate for making a will, which only confirms that the testator is a legally capable person, the plaintiff did not explain to the court how the recognition of this certificate as invalid and its cancellation, in the absence of evidence to confirm the opposite circumstances, will affect the legality of the contested will
Decision of the Supreme Court in the composition of the panel of judges of the Third Judicial Chamber of the Cassation Civil Court dated May 28, 2025 in case No. 752/11484/19-c
Having established that during the certification of the contested will, the notary complied with the requirements of Articles 1247, 1248, 1253 of the Civil Code of Ukraine, and the plaintiff did not provide the court with proper and admissible evidence of violations of the requirements of the current legislation in its preparation or certification and did not prove that the expression of will of the testator was not free and did not correspond to her internal will, the court of first instance, with whose conclusion the appellate court agreed, came to the correct conclusion about the absence of legal grounds to satisfy the claims of PERSON_1.
The plaintiff’s reference that the said certificate is not a proper and admissible evidence in the case to confirm the circumstances of the full civil legal capacity of the testator – does not refute the courts’ conclusions.
Insisting on the non-mandatory nature of the disputed certificate for making a will, which only confirms that the testator PERSON_5 is a legally capable person, the plaintiff did not explain to the court how the recognition of this certificate as invalid and its cancellation in the absence of evidence to confirm the opposite circumstances, and how it will affect the legality of the contested will.
In the case under consideration, all essential questions arising in the qualification of disputed relations have been answered. The existence of another point of view of the complainant on the established circumstances by the courts and the assessment of the evidence in the case does not refute the legality and validity of the decisions taken by the local and appellate courts and essentially amounts to urging the cassation court to make a different decision – in favor of the applicant.