When the Presence of Witnesses is Mandatory During Will Certification: Analysis of the Supreme Court Practice

A will is one of the most important legal acts in the field of inheritance law, as it determines to whom and under what conditions a person's property will pass after their death. At the same time, the legislator has established a number of requirements for the form and procedure of will certification, non-compliance with which may later become grounds for legal disputes among heirs.

One such guarantee is the participation of witnesses. Despite the common belief, their presence is not always required. In most cases, a notary certifies the will without the participation of third parties. However, in certain situations defined by law, the presence of at least two witnesses is mandatory, and violation of this requirement may call into question the compliance with the procedure of certifying the testator's last will.

The will is a personal disposition of a person

According to Article 1233 of the Civil Code of Ukraine, a will is a personal disposition of an individual in the event of their death. The peculiarity is that it has an exclusively personal character: it cannot be made through a representative or another authorized person. That is why the law pays special attention to confirming that the document truly reflects the free will of the testator.

The general requirements for the form of the will are defined by Article 1247 of the Civil Code of Ukraine. The document is drawn up in written form indicating the place and time of its execution, signed personally by the testator, and certified by a notary or other persons authorized by law. In turn, Article 1248 of the Civil Code of Ukraine provides that the notary certifies the will after establishing the identity of the testator, verifying their legal capacity, and explaining the legal consequences of such a transaction. It is precisely the notarial certification that is one of the key guarantees of the document's legality.

At the same time, the legislation provides for situations when a notary objectively cannot certify the will. In such cases, the relevant powers are granted to other officials or employees.

When a will can be certified by someone other than a notary

The list of such cases is defined by Article 1252 of the Civil Code of Ukraine. In particular, the following persons have the right to certify a will:

• chief physician, their deputy for medical affairs, or the duty doctor of a hospital or infirmary,
• director or chief physician of a nursing home for elderly and disabled persons,
• captain of a sea or river vessel,
• expedition leader,
• commander of a military unit,
• head of a penal institution or pre-trial detention center.

The granting of such powers is exclusively related to special life circumstances when a person is in a place where it is impossible or significantly difficult to contact a notary.

At the same time, it is precisely in these cases that the law establishes additional guarantees of the authenticity of the will – the mandatory participation of witnesses.

When the presence of witnesses is mandatory

The requirements regarding the participation of witnesses are defined by Article 1253 of the Civil Code of Ukraine. The law provides for two main situations when certifying a will without witnesses is impossible. First, if due to physical condition or health the testator cannot independently read the text of the document. In such a situation, the law requires the presence of at least two witnesses who confirm that the content of the will was communicated to the person and corresponds to their true will.

Second, the participation of two witnesses is mandatory when the will is certified not by a notary, but by another official or employee specified in Article 1252 of the Civil Code of Ukraine. These requirements are intended to minimize the risks of possible pressure on the testator, document forgery, or doubts about the voluntary nature of their will.

That is why an additional control mechanism is established in cases where the standard notarial procedure is not applied or when the physical condition of the person does not allow them to personally verify the text of the document.

Who can and cannot be a witness

The requirements for persons who can be witnesses during will certification are also defined by Article 1253 of the Civil Code of Ukraine. The legislator specifically limited the circle of such persons to ensure maximum impartiality of the procedure and to exclude conflicts of interest. A witness can only be a natural person with full legal capacity, capable of understanding their actions and confirming the fact of will certification.

At the same time, the law explicitly prohibits being witnesses to: the notary or other official certifying the will, heirs named in the will, family members and close relatives of such heirs, persons who cannot read or personally sign the document.

These restrictions have practical significance. If a witness is a person directly interested in inheriting the property, this may raise doubts about the voluntariness of the testator's will and become one of the arguments during a court dispute.

However, the mere participation of an improper witness does not automatically mean the invalidity of the will. The court in each specific case assesses whether such a violation affected the person's ability to freely express their last will and whether it is significant.

Duties imposed on witnesses

It is worth noting that the role of witnesses is not limited to merely being present during the certification of the document. According to part three of Article 1253 of the Civil Code of Ukraine, they must read the text of the will aloud and sign the document.

In addition, the will must necessarily include information about each witness, namely:

• surname, first name, and patronymic,
• date of birth,
• place of residence,
• passport details or other identity document.

Such data allow, in case of a dispute, to identify the persons present during the certification of the will and, if necessary, to question them in court as witnesses regarding the circumstances of the document's execution.

Will secrecy: what is prohibited to disclose

Another important guarantee of inheritance law is the secrecy of the will. According to Article 1255 of the Civil Code of Ukraine, the notary, other official certifying the will, witnesses, as well as the person signing the document on behalf of the testator, do not have the right before the opening of the inheritance to disclose to anyone information about: the fact of will execution, its content, amendments, or cancellation of the document.

This rule is intended to ensure the freedom of a person's will and protect them from possible psychological or property pressure from potential heirs.

A separate procedure is also established for a secret will. According to Article 1250 of the Civil Code of Ukraine, after the testator's death, the notary announces its content in the presence of interested persons and two witnesses, drawing up a corresponding protocol containing the full text of the document.

Can procedural violations be grounds for a court dispute

Supreme Court practice shows that the mere fact of non-compliance with certain procedural requirements does not automatically mean the will is invalid. When considering such disputes, courts primarily assess whether the main principle of inheritance law was observed – the free will of the testator.

If the procedural violation deprived the possibility to reliably establish the true will of the person or cast doubt on the legality of the document's certification, this may be grounds for declaring the will invalid according to Article 1257 of the Civil Code of Ukraine. In contrast, minor technical inaccuracies that did not affect the content of the will do not always lead to the cancellation of the document.

That is why in inheritance disputes courts analyze not only formal compliance with the procedure but also all circumstances of will certification, witness explanations, medical documents, expert conclusions, and other evidence.

A notable example is the Supreme Court ruling dated May 5, 2025, in case No. 369/11739/22, where the court declared the will invalid due to violation of the procedure of certification in the presence of witnesses. During the hearing, it was established that the witnesses were not present when the notary recorded the text of the will from the testator's words, did not read it aloud to the testator, and did not actually confirm compliance with the procedure provided by Article 1253 of the Civil Code of Ukraine.

The Supreme Court emphasized that in cases where will certification must take place in the presence of witnesses, compliance with this procedure is a guarantee of confirming the free will of the testator. Therefore, significant violations of the certification procedure may be grounds for declaring the will invalid.

Another interesting example is case No. 127/13374/20. The plaintiff requested to declare the will invalid, arguing, among other things, that the testator allegedly did not understand the significance of her actions during its certification. However, the Supreme Court upheld the decision to dismiss the claim, emphasizing that the heirs' doubts alone are not grounds for canceling the will.

The court took into account the conclusions of post-mortem forensic psychiatric examinations, testimony of the family doctor, and other evidence confirming that the testator's will was free and corresponded to her true will. This criterion is decisive when assessing the validity of the will.

In conclusion, the institution of witnesses during will certification is not a formal legislative requirement but one of the mechanisms to protect the true will of the testator.

The law clearly defines cases when their participation is mandatory, sets requirements for candidates as witnesses, and imposes specific duties on them. For citizens, this means that when executing a will, it is important to carefully follow all procedural requirements, especially if the document is certified not by a notary or if the testator cannot independently familiarize themselves with its text due to health reasons. Non-compliance with the established procedure may become the subject of a lengthy court dispute after the opening of the inheritance, whereas a properly executed will significantly reduces the risk of its successful challenge.

Previously, "Judicial and Legal Newspaper" wrote about whether it is possible to register inheritance if the father's surname is written differently in documents.

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