A will is usually perceived as a document whose content is known to the notary at the time of certification. However, Ukrainian legislation also provides for another, much less common form – a secret will. Its peculiarity is that the person’s will remains hidden not only from relatives or future heirs, but also from the notary until the moment of opening the inheritance. Such a will combines an element of complete personal secrecy and increased legal risks, because errors in wording or unclear text may appear even when the testator himself cannot correct anything.
Lawyers from the Repeshko & Partners Law Firm commented on how a secret will is drawn up, who has the right to certify it, in what order it is stored and announced after the testator’s death, as well as what practical points should be paid attention to so that a person’s last will does not become a source of misunderstandings or legal disputes between heirs.
Probably almost no one, except lawyers, knows that in addition to ordinary wills, the current legislation regulates a separate type of will – a secret will. According to statistics, secret wills in Ukraine are an extremely rare phenomenon compared to the total number of wills that are drawn up. Usually, their number did not exceed several dozen per year.
In the Civil Code of Ukraine, only two articles are devoted to a secret will – 1249 and 1250. Despite such brevity, they contain the main logic of this special type of will: its content remains unknown even to the notary until the moment of opening the inheritance.
A secret will is one that is certified by a notary without being familiar with its content. That is, a person independently states his last will, after which he submits the document to the notary in a sealed envelope. This envelope must necessarily bear the signature of the testator. Then the notary puts a certification inscription on the envelope, seals it with a seal and, in the presence of the testator, places this envelope in another envelope, which is also sealed. This ensures the preservation of the document and confirms that it was this will that was transferred to the notary by the person who made it.
After the death of the testator, when the notary receives information about the opening of the inheritance, he appoints a day for announcing the content of the secret will. The notary notifies the testator’s family members and relatives about this day, if he knows their place of residence. If such information is not available, the notification is made through print media.
It should be noted that the announcement of a secret will takes place in the presence of interested parties and two witnesses. The notary opens the envelope in which the will was kept and announces its contents. After that, a protocol of the announcement of the will is drawn up, which is signed by the notary and witnesses. The entire contents of the will must be entered into the protocol. At first glance, such a procedure may indeed resemble scenes from movies where, after the death of a person, the notary gathers the family and potential heirs to announce the last will. However, in real life, this is not a dramatic plot, but a clearly defined procedure by law, which should guarantee the preservation of the secrecy of the will until the appointed time.
The form of a secret will — a document in a sealed envelope, the contents of which are not disclosed to the notary — is a legal innovation introduced by the Civil Code of Ukraine, which came into force in 2004. Prior to this, Ukrainian legislation did not provide for this type of will.
It is important to understand that in the case of a secret will, the role of the notary has a certain peculiarity. He does not check or analyze the text of the will itself, since he does not familiarize himself with its contents. In fact, the notary performs other notarial actions: he certifies the testator’s signature on the envelope containing the secret will, and accepts this will for safekeeping. Therefore, the responsibility for the clarity, accuracy and consistency of the text in such a case largely rests with the testator himself.
It is worth knowing that only a notary can certify a secret will. This is an important difference from some other wills, which under certain circumstances may be certified by officials of local government bodies or other persons whose certificates are equivalent to notarial ones. In the case of a secret will, this procedure does not apply: the legislation provides for notarial certification. At the same time, a secret will may be certified by a consul of Ukraine in accordance with the rules for performing notarial acts in diplomatic missions and consular offices of Ukraine.
The procedure for working with such wills is described in more detail in the Procedure for Performing Notarial Acts by Notaries of Ukraine, approved by Order of the Ministry of Justice of Ukraine dated February 22, 2012 No. 296/5. This document clarifies practical points that are important for both the testator and the notary. The notary certifies a secret will without familiarizing himself with its contents. That is, he does not read the text of the will, does not check to whom and what property is bequeathed, and does not interfere with the content of the person’s last will. At the same time, the notary must explain to the testator that the text of the will must be presented clearly, clearly and without formulations that, after the opening of the inheritance, may cause different interpretations, disputes or doubts about the true will of the testator.
A secret will is submitted to the notary by the person who made it. The document must be in a sealed envelope, and the envelope itself must bear the testator’s personal signature. If this signature was not made in the presence of the notary, the testator must personally confirm to the notary that the signature on the envelope belongs to him. This means that it is impossible to transfer a secret will through a representative by power of attorney. In such a procedure, the testator’s personal participation is mandatory. It is he who must appear before the notary, submit a sealed envelope with the will and confirm his signature in the prescribed manner.
So, as we can see, submitting a secret will through a representative by proxy is completely excluded! Only personal presence!
The notary places on the envelope containing the secret will a certification inscription about the certification and acceptance of the secret will for safekeeping, seals it with a seal and, in the presence of the testator, places it in another envelope and seals it. The envelope shall indicate:
- last name, first name, patronymic of the testator;
- date of birth of the testator;
- date of acceptance of this will for safekeeping.
A secret will is accepted for safekeeping by the notary without drawing up an inventory. The procedure for declaring a secret will is clearly written and requires its observance. Thus, the notary who keeps a secret will, upon receiving information about the opening of the inheritance and the submission of the testator’s death certificate, appoints the day of announcing the contents of the will. The notary notifies the testator’s family members and relatives about the day and time of announcing the contents of the will, if their places of residence are known to him, or makes an announcement about this in the printed media.
The notary who certifies a secret will has the right to learn from the testator about the circle of persons who should be notified about the time and place of announcing the secret will. Even if the notary does not ask for this, we strongly recommend leaving the contacts of the persons who should be present at the announcement of the will, in the opinion of the testator.
The notary, in the presence of interested persons and two witnesses, opens the envelope in which the will was kept, and announces its contents. Interested persons in this case are those who believe that they should be heirs either by law or by will. As for witnesses, the current regulations do not specify the criteria by which they should be selected. Based on the general requirements for witnesses, which usually must be met, these are impartiality and impartiality, personal disinterest, and full civil capacity.
The legislation also does not regulate the question of who exactly must and how must ensure the presence of witnesses when declaring a will. However, in any case, witnesses cannot be: a notary or other official, official person who certifies the will; heirs by will; family members and close relatives of heirs by will. Based on this, it is better to invite friends or acquaintances, neighbors to this honorary role.
A protocol is drawn up on the declaration of the will, which is signed by the notary and witnesses. The protocol shall indicate:
- date, time and place of drawing up the protocol on the declaration of a secret will;
- date of certification and acceptance for storage of the secret will;
- surname, first name, patronymic of the persons present at the declaration, including witnesses; information about notifications from persons who did not appear for the announcement of a secret will, or information about notifications in printed media;
- the condition of the will (for example, the presence of crossed out places, amendments or other shortcomings);
- the condition of the envelope in which the will was located, and the entire text of the will is also recorded.
If it is impossible to determine the true will of the testator, the notary reproduces in the protocol the text of the will interpreted by the heirs and information about the achievement (or failure) of an agreement between the heirs regarding the interpretation of the text of the will.
The text of the protocol reflects the notary’s warning of witnesses about liability for damage caused by them as a result of the disclosure of information that became known to them in connection with the announcement of a secret will. That is why a secret will is secret! The protocol may also indicate other significant circumstances of the announcement of the will.
It should be noted that a secret will remains in the notarial case file after its announcement. If an interested person, duly notified of the day of the announcement of the secret will, does not appear for the announcement, the notary announces the contents of the secret will to those persons who appeared. If an interested person appears after the announcement of the will, the notary acquaints him with the protocol of the announcement of the secret will, about which he makes an appropriate note, which is also signed by this person.
Before their announcement, secret wills are stored in a separate package in iron cabinets or safes. Filing secret wills into separate sets before their announcement is not allowed. A secret will can be canceled or changed like a regular will, by doing the following. The notary, the head of the state notary archive, upon receipt of an application for the cancellation or amendment of a will, as well as in the presence of a new will that cancels or amends a previously drawn up will, shall make a note of this on the copy of the will stored in the notary’s files in the state notary archive, and a note in the register for registration of notarial acts and in the alphabetical book of wills.
If the testator submits a copy of the will that he has, then an entry about the change or cancellation of the will is made on this copy as well, after which it, together with the application (when the will is canceled by an application), is added to the copy stored in the notary’s files in the state notary archive. In this case, the authenticity of the signature on the application for the cancellation or amendment of the will must be notarized. A will of a spouse may be canceled by each of the spouses only during the lifetime of both spouses.
A notary who, during the certification of a will, becomes aware of the existence of a previously drawn up will, shall notify the state notary archive, notary or local government body where a copy of the previously certified will is stored of the notarial act performed. In the event of the final cancellation of a secret will, the notary, the head of the state notary archive, upon receipt of an application for the cancellation of a secret will, as well as in the presence of a new will, shall make a note of this in the register for the registration of notarial acts and in the alphabetical book of wills.
If the testator submits a copy of the certificate of certification and acceptance for storage of a secret will, then an inscription on the cancellation of the will shall be made on this copy as well, after which it shall be attached, together with the application (when the will is canceled by an application), to the copy of the certificate stored in the notary’s files in the state notary archive. In the event of the cancellation of a secret will at the testator’s request, the notary shall return to the testator the envelope signed by him, in which the secret will is stored. In this case, the authenticity of the testator’s signature on the application for cancellation of a secret will must be notarized.
In general, all information about the will, changes to it and its cancellation are subject to mandatory state registration in the Inheritance Register in the manner established by the Regulations on the Inheritance Register. In conditions of war or a state of emergency, in the absence of access to the Inheritance Register, notarization of the will, amendments to it and its cancellation are carried out without using this register with subsequent entry of the relevant information into it within five working days from the date of restoration of such access.
If, after the declaration of a secret will, the heirs have doubts about the will of the testator, there is ambiguity in its interpretation, and if there is any dispute between the heirs, there is only one way out – to go to court.
Therefore, we advise you to treat a secret will not as a spectacular formality or a way to create intrigue for the heirs, but as a serious legal instrument that requires the clearest possible text, personal attention from the testator, and understanding of all the consequences. If a person chooses this form of will, he should think over the content of the instructions in advance, avoid ambiguous wording, and leave the notary with the contacts of the persons who should be notified about the declaration of the will. It should be remembered that after the opening of the inheritance, any ambiguities can be resolved only by agreement of the heirs or the court.
