Sometimes lawsuits challenging a will contain several self-sufficient, mutually exclusive grounds: the testator did not understand the meaning of his actions; the procedure for certifying the will was violated; execution of the will occurred as a result of violence, deception or mistake, etc. This creates the impression of the plaintiff's lack of confidence in his arguments. In any case, if several causes of action are claimed, each of them must be substantiated. This was said by the judge of the Supreme Court in the Cassation Civil Court Olga Stupak at the webinar "Mosaic of wills: doctrine, judicial and notarial practice (joint will of spouses, secret will, will with a condition)".
The judge analyzed the following issues: general grounds for declaring the will invalid; invalidity of the will on the grounds provided for in Art. 225 of the Civil Code of Ukraine; invalidity of the will on the grounds provided for in Art. 1257 of the Central Committee of Ukraine; features of the will of the spouses.
One of the most typical reasons for disputing a will is that the testator at the time of its execution did not realize the significance of his actions and (or) could not control them (Article 225 of the Civil Code of Ukraine). In the case of reference to this ground, it is necessary to prove the absolute inability of the person to be aware of his actions at the time of committing the act. Such incapacity is established only by the conclusion of a forensic psychiatric examination (postmortem). This is stated in the resolution of the Central Committee of the Supreme Court dated January 13, 2021 in case No. 242/61/19.
Olga Stupak noted that sometimes the conclusions of the forensic psychiatric examination indicate that it is impossible to establish the state of a person at a certain moment or that she did not fully understand the meaning of her actions; such conclusions cannot be the basis for declaring a deed, including a will, invalid.
Another common reason for disputing a will is a violation of the order of its preparation or lack of will of the testator (Article 1257 of the Civil Code of Ukraine). The speaker drew attention to the fact that in the first case the will is null and void due to the prescription of the law, and in the second case the court can declare it invalid. Therefore, in case of violation of the procedure for drawing up a will, it is necessary to formulate a demand not about its invalidity, but about the application of the consequences of nullity.
"In such a dispute, the court can state the nullity of the will in the motivational part, and the application of the consequences of its nullity will be an effective way of protection," said the judge. Such a conclusion is contained in the decision of the Supreme Court of Justice of Ukraine dated November 11, 2020, in case No. 756/10183/16-ts, in which the court recognized as a justified demand for the application of the consequences of the invalidity of a void deed by excluding from the inheritance register the record of the registration of the will.
In the resolution of the Grand Chamber of the Supreme Court of May 25, 2021 in case No. 522/9893/17, the conclusion was formulated that the notary's certification of a will outside of his notary district does not affect the form of the deed and does not fall under the requirements on the procedure for its certification contained in of the Central Committee of Ukraine and entail the nullity of the will in accordance with Part 1 of Art. 1257 of the Central Committee of Ukraine.
The Joint Chamber of the Supreme Court of the Supreme Court concluded in its decision dated March 1, 2021, in case No. 473/1878/19, that the next invalid will does not cancel the previous one. A void will does not create legal consequences. Also, in this resolution, the OP of the Supreme Court of Ukraine indicated that the court cannot oblige the notary to perform actions that are directly within his competence. The court satisfied the request to cancel the notary's refusal to issue a certificate of the right to inheritance, but refused to satisfy the request to oblige the notary to issue the corresponding certificate.
Talking about the specifics of the will of the spouses, Olha Stupak cited the decision of the Supreme Administrative Court of Ukraine dated June 15, 2022 in case No. 358/304/21. In it, the court of cassation noted that after the death of one of the spouses, the other spouse cannot change the spouse's will, as this would distort the will of the deceased. The death of one of the spouses is the reason for terminating the regime of joint joint ownership of the property of the spouses, in respect of which the will was drawn up, but does not give rise to the emergence of inheritance legal relations until the moment of the death of the other spouse.
The speaker also emphasized the correct identification of the defendant in inheritance disputes: the proper defendants are the heirs who have accepted the inheritance, and if there are none, then the local self-government body that represents the interests of the territorial community (to which the dead inheritance can go), and illustrated this with the example of a resolution CCS of the Supreme Court of December 5, 2018 in case No. 159/4424/17-ts. The first-instance court recognized the claimant's ownership of the apartment in the order of inheritance according to the will of the spouses after their death. The deceased wife's sister appealed against this decision. The CCS of the Supreme Court agreed with the decision of the appellate court, which closed the appellate proceedings in the case, indicated that the appellant's rights and legal interests were not resolved in this case. The arguments of the cassation appeal that the appellant contests in court the legality of the will of the spouses, according to which the plaintiff inherited the inherited property, do not indicate that the person who filed the appeal has the right to this property at the time of filing the appeal.
In the resolution of December 9, 2019, in case No. 161/8412/18 of the Supreme Court of Ukraine, the Supreme Court concluded that the making of a will by one of the spouses regarding his share in the apartment after the death of the other spouse is not consistent with part 3 of p. 1243 of the Civil Code of Ukraine, since during the life of the wife, neither of the spouses declared their intention to abandon the joint will of the spouses or to change it and did not exercise this right in accordance with the procedure established by law.
The ruling of the Supreme Court of Ukraine dated April 12, 2018 in case No. 761/22959/15-ts concerns the secret will of the spouses. The court indicated that when a will is made by spouses, and then one of the spouses renounces the joint will during the lifetime of both, the disposition that the person renounced loses its validity, but the disposition of the other spouse remains valid. In such a case, the valid order is the will of one of the spouses regarding his/her share in the joint co-ownership right. From the moment the will was drawn up until the husband's death, the wife did not exercise her right to withdraw from the joint will. Also, in this case, the Central Committee of the Supreme Court noted that the norms of the Central Committee of Ukraine do not contain a ban on drawing up a secret will of spouses. The content of the principle of permissive orientation of civil law regulation follows from the general principle of private law "everything that is not prohibited by law is permitted."
The webinar "Mosaic of wills: doctrine, judicial and notarial practice (joint will of spouses, secret will, will with a condition)" was organized by the NGO "Civilistic Platform".
Olga Stupak's presentation – https://rb.gy/kzvwq .