The will was canceled shortly before death and without the family's knowledge: what the Supreme Court said about the rights of heirs

The Civil Cassation Court within the Supreme Court reviewed a long-standing inheritance dispute regarding the cancellation of a will and formulated important conclusions about proper methods of protection in such cases. The court noted that if a person claims that the statement canceling the will was not signed by the testator himself, this effectively concerns the possible nullity of such a transaction due to violation of form requirements. At the same time, a claim to recognize a null transaction as invalid is not a proper method of protection. Furthermore, the Supreme Court concluded that a claim to cancel the notarial act certifying the statement on the cancellation of the will is not subject to consideration in civil proceedings.

Case circumstances

The dispute arose after the death of a man who in December 2012 made a will in favor of his granddaughter. The will was notarized by a notary at a medical facility where the testator was staying, in the presence of witnesses due to his advanced age and health condition.

However, on January 28, 2013, the notary certified a statement canceling this will. After the testator's death, his daughter and granddaughter learned that the will had been annulled and went to court.

The plaintiffs argued that due to serious illnesses and significant vision and hearing problems, the testator could not independently familiarize himself with the content of the document. They also believed that the signature on the statement canceling the will was made by another person, and that the notary violated legal requirements when certifying the document.

In their claim, they requested to recognize the statement canceling the will as invalid and to cancel the notarial act certifying it.

Decisions of the courts of first and appellate instances

The Uzhhorod City District Court of Zakarpattia region denied the claim. The appellate court left this decision unchanged.

The courts relied on a forensic handwriting examination conducted in the case, which confirmed that the signature on the statement belonged to the testator himself. They also did not find violations of the Law "On Notariat" or the Procedure for performing notarial acts during the certification of the statement canceling the will.

Position of the Supreme Court

Upon reviewing the case, the Supreme Court partially agreed with the outcome of the dispute but changed the legal reasoning of some conclusions of the lower courts.

Refusal to accept inheritance does not deprive the right to challenge the statement canceling the will

The Civil Cassation Chamber noted that the testator's granddaughter did not accept the inheritance within the six-month period established by law. However, this alone did not deprive her of the right to go to court with claims regarding the statement canceling the will.

The court explained that a claim to recognize the statement canceling the will as invalid may be made not only by a party to the transaction but also by another interested person. Therefore, missing the deadline for accepting the inheritance was not an obstacle to filing such claims in court.

If the statement canceling the will was not signed by the testator, such a transaction is null and void

The Supreme Court reminded that the law provides two ways to cancel a will: by making a new will or by making a separate unilateral transaction to cancel it. Such a transaction must be executed in the same manner as the will — in writing and with notarial certification.

The court emphasized that failure to sign the statement by the testator himself would mean a violation of the form requirements of the transaction. In such a case, it would be null and void by law.

At the same time, the Supreme Court did not recognize the disputed statement as null and void. On the contrary, the courts of first and appellate instances established that the signature on the statement belonged to the testator, and the cassation court did not review these factual circumstances.

The key conclusion of the Civil Cassation Chamber was that a claim to recognize a transaction as invalid, which the plaintiff actually considers null and void, is not a proper method of protection. If a person claims that a transaction is null and void, the court must verify the relevant arguments and assess the consequences of nullity, rather than declare such a transaction invalid by a separate decision.

Therefore, in case No. 308/13066/16-c, the Supreme Court stated that the lower courts correctly denied this claim but erred in their reasoning. The denial should have been justified by the improper method of protecting the right.

A claim to cancel a notarial act is not subject to consideration

The Supreme Court separately analyzed the claim to cancel the notarial act certifying the statement canceling the will.

The court recalled that Article 50 of the Law "On Notariat" provides for the possibility to challenge notarial acts. However, such a challenge must be capable of effectively restoring the violated right of the person.

According to the Civil Cassation Chamber, in this category of disputes, a claim to cancel the notarial act certifying the statement canceling the will is not a proper subject of judicial review. Such claims cannot ensure effective protection of the right, and therefore proceedings in this part should be closed.

For this reason, the Supreme Court canceled the decisions of the lower courts regarding the claim to cancel the notarial act and closed the proceedings in this part of the case.

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