A will with witnesses: how to draw it up to reduce the risk of being challenged in court

The certification of a will in the presence of witnesses usually attracts attention when a dispute begins between the heirs and each party is looking for reasons to question the validity of the document. The reason for such a dispute may be the state of health of the testator, the circumstances of signing the will, the participation of third parties in its execution, or errors in the certification procedure itself.

The lawyers of the law association “Repeshko and Partners”, whom our editorial office contacted, commented on how the law regulates the certification of a will in the presence of witnesses, in which cases such presence is mandatory, who cannot be involved in this procedure, and why in certain situations witnesses become important evidence in the event of a possible legal dispute.

Military operations in the territory of Ukraine unfortunately expand the circle of persons who have one or other health problems, or are in military service or undergoing treatment. The rapid pace of life and the conditions in the country give both civilians and military personnel reason to think about who will inherit, and the issue of will certification is quite relevant. With the general rules for will certification, everything is quite transparent and well-known, but not everyone knows that there are special cases when it is desirable to certify a will in the presence of witnesses.

Article 1253 of the Civil Code (CC) of Ukraine states that a will in the presence of witnesses may be certified at the request of the testator and in cases provided for by law. Given this freedom of action, we strongly recommend using the rights granted and certifying wills in cases where the law does not even require this obligation. This is necessary in order to avoid grounds for declaring a will invalid in the future.

It often happens that a lawsuit to declare a will invalid is filed for any suspicion that the person who made it was not in an adequate state. For example, a grandmother who left a will to a third party while taking clonidine. Another example is a soldier after a concussion who, while being hospitalized, went to the notary in a neighboring building and left all his property to his brother according to the will, regardless of the presence of two children.

Of course, the final decision in such cases will depend on the appropriate examination, but since all wills are contested posthumously, that is, when the testator is no longer alive, any evidence of its adequacy is worth its weight in gold, and therefore the certification of the aforementioned wills in the presence of witnesses would give them significant weight.

The following categories of wills must be certified in the presence of witnesses:

• if the testator cannot read the will himself due to physical disabilities, the will must be certified in the presence of witnesses (Article 1253 of this Code);
• the will of a person undergoing treatment in a hospital, hospice, other inpatient health care facility, as well as a person living in a home for the elderly and persons with disabilities, in the case of certification of the will by the chief physician, his deputy from the medical unit or the doctor on duty of this hospital, hospital, other inpatient health care facility, as well as by the head of the hospital, director or chief physician of the home for persons elderly and disabled persons (Article 1252 of this Code);
• the will of a person who is on a sea or river vessel sailing under the flag of Ukraine, as the will is certified by the captain of this vessel (Article 1252 of this Code);
• the will of a person who is on a search or other expedition, as the will is certified by the head of this expedition (Article 1252 of this Code);
• the will of a serviceman, and in the locations of deployment of military units, formations, institutions, military training institutions, where there is no notary or body performing notarial acts, also the will of an employee, a member of his family and a member of the family of a serviceman, as long as the will is certified by the commander (chief) of these units, formations, institutions or institutions (Article 1252 of this Code);
• the will of a person held in an institution of execution punishments, as the will is certified by the head of such an institution (Article 1252 of this Code);
• the will of a person held in a pre-trial detention center, as the will is certified by the head of the pre-trial detention center (Article 1252 of this Code).

It should be noted that when certifying these wills, the law requires the mandatory presence of at least two witnesses. The maximum number of witnesses is not established by law, but an analysis of foreign legislation shows that in practice the number of witnesses does not exceed five to seven people. In this case, only persons with full civil capacity, that is, who have reached the age of 18 (except for cases when legal capacity was obtained earlier) and who have not been declared incompetent by a court in accordance with the established procedure, may be witnesses.

At the same time, the legislation clearly establishes a list of persons who cannot be witnesses:

1) a notary or other official, service person who certifies the will;

2) heirs under the will;

3) family members and close relatives of the heirs under the will;

4) persons who cannot read or sign the will.

It is also a mandatory requirement that the witnesses in whose presence the will is certified read it aloud and sign it. The procedural significance of the participation of witnesses in the certification of a will is precisely that they are involved in the actions related to the certification of the will, while each of them must read the will aloud and put his signature on it. The text of the will includes information about the identity of the witnesses, namely: surname, first name, patronymic of each of them, date of birth, place of residence, details of the passport or other document on the basis of which the identity of the witness was established (paragraph 4 of paragraph 158 of the Instructions on the procedure for performing notarial acts by notaries of Ukraine).

And now the most interesting thing. The law states that family members and close relatives of heirs under a will cannot be witnesses. The answer to this question must be sought by analyzing a wide layer of legislation. In this case, it is necessary to take into account the position of the Supreme Court of Ukraine, which states the following:

1. The Civil Code of Ukraine does not contain a list of close relatives who cannot be witnesses when certifying a will.

2. When interpreting paragraph 3 of part four of Article 1253 of the Civil Code of Ukraine, the definition of close relatives given in Article 68 of the Civil Code of Ukraine should be taken into account, which is given in Article 68 of the Civil Code of Ukraine, which in its content is closest to Article 1253 of the Civil Code of Ukraine, since it limits the circle of persons who cannot conclude contracts with certain persons. Such persons are parents, children, brothers, sisters, and it is these persons who cannot be witnesses when certifying wills in favor of their close relative.

3. Civil relations are characterized by the following criteria, thanks to which relations are civil: legal equality, free expression of will, property independence of their participants. In contrast, public relations have other, completely opposite characteristics. The Parliament did not provide in Article 1 of the Civil Code of Ukraine the possibility of applying the norms of public laws to the regulation of inheritance relations, namely, regarding the definition of a close relative within the meaning of Clause 3 of Part Four of Article 1253 of the Civil Code of Ukraine.

4. The application of Article 1 of the Law of Ukraine “On Prevention of Corruption”, Article 26 of the Code of Civil Procedure of Ukraine, Article 25-1 of the Civil Code of Ukraine, by analogy with the law, is impossible when resolving the issue of defining the concept of “close relatives” (Clause 3 of Part Four of Article 1253 of the Civil Code of Ukraine), since these acts of legislation provide different definitions of the circle of such persons, which is related to the special purposes of legal regulation of the relevant acts. For example, the uncle / aunt of the heir by will are not close relatives of the heir by will within the meaning of Clause 3 of Part Four of Article 1253 of the Civil Code of Ukraine. The natural uncle / aunt of the heir under the will can be considered a member of the heir’s family only if he and the heir live together, are connected by a common way of life, have mutual rights and obligations.

If we take a grandnephew, then he is not a close relative in the general sense and can be a witness when certifying the will. However, if he lives together with the testator and leads a common way of life, then he automatically becomes a family member and can no longer be a witness when certifying the will.

However, the first thing to remember is that a transaction is valid if its invalidity is not directly established by law or if it is not declared invalid by a court (Article 204 of the Civil Code of Ukraine). The presumption of legality of a transaction means that a transaction is considered legal, that is, one that entails the acquisition, change or termination of civil rights and obligations, until this presumption is rebutted. Thus, until the rebuttal of the presumption of legality of a transaction, all rights acquired by the parties under it can be exercised without hindrance, and the created obligations are subject to execution.

Rebuttal of the presumption of legality of a transaction occurs when the invalidity of the transaction is directly established by law (i.e., its nullity occurs), as well as if it is declared invalid by a court, that is, there is a court decision that has entered into legal force (i.e., the contested transaction is declared invalid by a court).

According to Part 2 of Article 1257 of the Civil Code of Ukraine, upon the claim of an interested person, the court shall declare a will invalid if it is established that the testator’s expression of will was not free and did not correspond to his will. The interpretation of this norm indicates that for a will to be valid, the testator’s expression of will must be free and correspond to his inner will.

It is worth knowing that the legislation defines will as the testator’s inner desire to determine the fate of the inheritance in the event of his death by drawing up a personal order (will). At the same time, the expression of will is an external manifestation of inner will, which finds its embodiment in a will drawn up and certified in accordance with the requirements stipulated by the Civil Code of Ukraine.

When embarking on the path of contesting a will, it is necessary to remember that each party must prove the circumstances that are relevant to the case and to which it refers as the basis for its claims or objections, except for the cases established by this Code (Part One of Article 81 of the CPC of Ukraine).

In this case, the court evaluates the evidence according to its internal conviction, which is based on a comprehensive, complete, objective and direct study of the evidence available in the case. No evidence has a pre-established force for the court. The court also evaluates the relevance, admissibility, reliability of each piece of evidence separately, as well as the sufficiency and mutual connection of the evidence in their entirety. In addition, it evaluates both the evidence collected in the case as a whole and each piece of evidence (group of similar evidence) contained in the case, motivates the rejection or consideration of each piece of evidence (group of evidence) (Parts One-Three of Article 89 of the CPC of Ukraine).

After the transaction is certified, the witnesses acquire the legal status of official witnesses in accordance with Art. 63 of the Civil Procedure Code and, in the event of doubt about the authenticity of the certified transaction, they must express their observations that they formed during its certification, if the court considers it appropriate to question them.

Therefore, if you carefully approach the certification of a will and perform it in the presence of witnesses even where the law does not require this action to be mandatory, you can stock up on weighty evidence in favor of the fact that the testator really freely expressed his desire regarding the inheritance and was in a completely adequate state and understood his actions.

We advise you to treat the certification of a will as a procedure in which every detail is of decisive importance, starting from the state of the testator and ending with the correct determination of persons who can be witnesses. In cases where a person is undergoing treatment, is in military service, has serious health problems, or there is a risk that their will will be questioned in the future, the presence of witnesses during the probate of a will can significantly strengthen the legal stability of this document.