Challenging a will is one of the most urgent problems in the field of inheritance law. In modern realities, when the issue of distribution of inheritance often becomes the cause of conflicts between relatives, the number of court cases related to the challenge of wills is constantly growing. Wills are often challenged due to suspicions of their invalidity, being drawn up under pressure or without proper understanding. At the same time, legal ignorance and legal myths only complicate the situation, creating space for manipulation.
The lawyers of the “Repeshko and Partners” Bar Association explained in detail how to correctly assess the legality of a will, on what grounds it can be challenged, and also provided advice on what nuances should be paid attention to in order not to lose the right to inheritance.
Nothing causes such violent disputes after the death of the person who left a will, as the question, is it possible to challenge this will? The last manifestation of citizens’ will is sometimes quite unpredictable and completely incomprehensible. Indeed, it is quite difficult to understand why a dying mother, in the presence of two daughters, left all her property to the daughter whom she had not seen for five years. Or with what joy did the woman leave the house as a legacy to completely strangers who, as it were, helped her three months before her death?
We note right away that it is possible to challenge the will only after the death of the testator. As long as he is alive, no one has the right to invalidate his will, no matter how strange it is and in what state the testator himself was. But this is precisely where the difficulty of the issue lies – the document of a person who is no longer alive will be recognized as invalid, and this makes proof quite difficult.
In general, it should be noted that invalid wills are divided into null and contested wills. A will drawn up by a person who did not have the right to do so, as well as a will drawn up in violation of the requirements for its form and certification, are null and void. Such wills include:
- wills certified on behalf of an individual who does not have full civil legal capacity;
- certified by proxy through a representative;
- certified by an authorized person, but in violation of the requirements established by law (for example, without the time and place of assembly);
- certified by a person not authorized to do so;
- secret wills certified by a notary in violation of the requirements established by law
- certified in the absence of witnesses in cases where their presence is mandatory;
- the will that the alienator made regarding the property specified in the inheritance contract. But – the validity of the will regarding the composition and volume of the inherited property is established at the time of the opening of the inheritance. A will regarding the property specified in the inheritance contract, drawn up and certified during the validity of the inheritance contract, which was subsequently terminated in a court of law, cannot be declared invalid.
Note that a void will is a will that does not create legal consequences, it is not enforceable and does not need to be declared invalid by a court. That is, there is no need to challenge such a will in court, since it is invalid as a result of a direct indication of this in the law. It must be said that this category of wills is quite rare. They should not bother the heirs very much, because the notary who opens the inheritance case in the future and finds out all the circumstances of the inheritance himself will not miss such a will, unless, for example, the will will be drawn up by a person who was recognized by the court as incompetent due to a mental illness, and the notary who certified the will did not know this, because he does not have such information on his forehead and single registers of persons who are recognized disabled as well.
But in any case, you need to be careful! If the notary during the opening of the inheritance case establishes that the will is invalid, he must refuse to issue a certificate of the right to inherit under the will. If the notary’s actions do not comply with the law, then it is necessary to challenge them in court.
However, the absence of certain requisites in the will, which does not prevent the possibility of establishing the identity of the testator, his freedom of expression, the time and place of making the will, the person who notarized it, etc., cannot be considered as a violation of the form of the will. Such a will will be considered valid. Also, the Supreme Court of Ukraine on the case in 2021 formulated the conclusion that certification of a will by a notary outside its notary district does not affect the form of the deed and does not fall under the requirements on the procedure for its certification, which are contained in the Civil Code of Ukraine and entail the nullity of the will in accordance with part 1 Art. 1257 of the Central Committee.
We would also like to note that a will certified by an official or a notary in the temporarily occupied territory of Ukraine, where the state authorities, officials and officials of Ukraine do not exercise their powers, is also null and void!
Another nuance related to the situation in the country – the fact that the testator does not have a passport of a citizen of Ukraine at the time of making the will cannot be the basis for declaring such a will invalid due to the fact that in this case the determining factor for the notary was the identification of the person who applied for the performance of the notarial act.
The grounds for invalidating a will are:
- drawing up a will by a person who did not have the right to do so, that is, by an incapacitated person;
- drawing up a will in violation of the requirements for its execution and certification;
- when making a will, the will of the testator was not free and did not correspond to his will.
As we can see, the first two reasons coincide with the reasons for the nullity of the will, but a lot depends on the nuances of each individual case.
As for the third reason, it provides for the following cases:
- The will was made at a time when the person (testator) did not realize the significance of his actions and (or) could not control them. To establish such a mental state of a person at the time of making a will, it is mandatory to conduct a postmortem forensic psychiatric examination (sometimes also a handwriting examination). The conclusion of such an examination is a valid proof, but it does not entail the “automatic” recognition of the will as invalid, since the decision is made by the court taking into account all the available evidence as a whole. 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 he did not fully understand the meaning of his actions; such conclusions cannot be the basis for declaring a deed, including a will, invalid.
- A will was made by a person against his true will as a result of the application of physical or mental pressure on him by another person. Evidence in this case will be witness statements, messages in messengers, letters, etc. where the testator complains about these circumstances, recordings from video surveillance cameras
In general, the recognition of a will is a very difficult matter. Before deciding whether there is a reason to go to court, the lawyer finds out many nuances, for example: what, when and how sick the testator was, what diagnoses he had, what medicines he took in connection with this and how much, how long before his death the testator certified the will and under what circumstances, and much more. The point is that only with good reasons can you go to court with a corresponding claim.
Let’s give an example from our practice. The woman had two daughters and one apartment. During her lifetime, she gave this apartment in the name of her eldest daughter’s minor granddaughter. The younger daughter found out about it a couple of months later, took her mother to her house and persuaded her to file a lawsuit to declare the donation contract invalid. Six months after the donation contract was certified, the mother made a will for the disputed apartment in the name of the youngest daughter. The woman won the court – the donation contract was declared invalid on the grounds that it was drawn up in Ukrainian, which the woman of a respectable age did not understand very well, and during the certification of the donation contract, she did not feel well and could not see well, as evidenced by the repeated calls to the ambulance at that time and her explanations in court.
Soon the woman died. The eldest daughter, relying on the grounds on which her mother invalidated the donation agreement, considering that the will was drawn up only half a year after the donation agreement, decided to declare the will invalid through the court. She did not know exactly how the will was drawn up, the notary only informed her that it existed. The court demanded a copy of the will from the notary and it turned out that the will was certified in two languages - Russian and Ukrainian (which covered the issue of poor knowledge of the Ukrainian language) and was read aloud in the presence of two witnesses (which covered the issue of bad eyesight or partial blindness of the testator). It was not possible to find medical documents regarding the woman, because where and when the younger daughter took her mother for treatment, the older one did not know, and the younger daughter refused to say this in court, because it was her way of protection. However, the woman did not have any terrible diseases, they were normal for her age, and she was not prescribed drugs that would alter the perception of consciousness. What do you think the eldest daughter’s chances of winning in this case are?
It is worth knowing that both the entire will and a part of it (a separate order) can be declared invalid, while the invalidity of a separate order from the will does not entail the invalidity of another part of it. At the same time, the person whose rights and interests have been violated by the will has the right to apply to the court with a claim to declare the will invalid. Such persons can be:
- heirs who have the right to a mandatory share (minors, minors, adult disabled children of the testator, disabled widow (widower) and disabled parents inherit, regardless of the content of the will, half of the share that would belong to each of them in case of inheritance by law (mandatory share);
- legal heirs who, in the absence of a will, would inherit the property;
- heirs under another will (in case the testator made several wills);
- the person in whose favor the testamentary disposition was made.
The court fee for this category of cases as of 2025 is UAH 1,211.20.
There may be several grounds for invalidating a will at the same time, but in any case, if several grounds of action are claimed, each of them must be substantiated. In addition, it is very important to correctly determine the defendant’s side in inheritance disputes: the proper defendants are the heirs who accepted the inheritance, and if there are none, then the local self-government body that represents the interests of the territorial community (to whom the dead inheritance may go).
However, the main thing that should always be remembered is that the law does not allow the alienation of the right to make a will, its limitation or the waiver of the right to make a will. The principle of freedom to make a will includes the possibility for the person who made the will to change it or completely cancel it at any time. Moreover, the testator has the right to make such a decision any number of times, guided solely by his personal considerations and interests, without taking into account the opinion of the heirs specified in the will, or the notary who certified the will. The testator, revoking or changing the will, should not indicate the reasons for its change or cancellation or justify his decision.
In general, a person can rewrite a will at least every day, if he wishes! At the same time, each subsequent will cancels the previous one, if the same amount of inherited property is specified in it. If the subsequent will concerns only a part of the previously bequeathed property, then the previous will continues to operate in the part that was not affected by the subsequent will.
And now, advice for people who intend to make a will, but are afraid that in the future they may try to challenge it through the court. In order to minimize the risks, it is necessary to visit a doctor a few days before making a will and get a certificate from the hospital that you are not registered in a psychoneurological dispensary, do not suffer from psychiatric diseases, and generally get a certificate about current diagnoses and medications prescribed by the doctor.
It is even better to make an extract from your outpatient card, in which there is a note from the therapist that you have no health complaints, you feel well, all your medical indicators are within age norms. All this at least during the last six months. The main thing in the specified documents should be a note from the family doctor stating that you have not been prescribed medications that affect your ability to understand the meaning of your actions and the ability to manage them, and that, according to you as a patient, you have not been taking them for the past two months. The latest analyzes added to such an extract will only be a bonus.
