Challenging a will

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In this informative material of the law firm “Kolybanekova & Partners”, we focus on an extremely sensitive and complex aspect of real estate law and inheritance law - the case for challenging a will. We understand how difficult and emotionally taxing it can be for all affected parties to go through the process of challenging a will, which is why our team of good real estate lawyers are here to provide the necessary support, professional guidance and legal protection to our clients. If you need a lawyer to challenge a will, you can contact us and defend your rights and interests today!

The information material will look at key aspects related to the challenge of wills, such as:

  • Limitation period for challenging a will: The importance of meeting legal deadlines and how they affect the right to challenge.
  • Challenging a will by heirs and creditors: The various grounds on which these disputes may be based, including issues related to the reserved portion.
  • Wills Disputes Forum: Where and how wills can be filed to challenge wills.
  • Transfer of property by will: The legal nuances and consequences of the transfer of property by will.
  • Validity and nullity of wills: How the validity of a will, including handwritten wills, is established and in which cases a will can be declared null and void.
  • Donation or will: The distinctions and legal consequences of choosing between these two forms of transfer of property.

Our mission is to ensure that our clients receive the full attention and expertise needed to navigate the complex processes involved in challenging wills. We understand the deep and often personal motives behind such cases and are dedicated to providing clear, accurate and efficient legal solutions. Our team works tirelessly to protect the interests of our clients, always striving to reach the best possible outcome.

What is a will, what types are there and what is a preserved part?

A will is a personal, unilateral, revocable, gratuitous and moral act by which any person who meets certain conditions in the Inheritance Law can settle the fate of his property after his death. According to Article 13 of the Inheritance Law, any person who has reached the age of 18 and who is not placed under complete prohibition due to weakness and is able to act reasonably, may dispose of his property for after his death by means of a will. This legal action gives the testator the opportunity to designate heirs to his property at his discretion, taking into account the legal restrictions and requirements for a reserved part.

Types of wills

The law distinguishes two main types of wills: notarial and handwritten.

  • A notarial will (Art. 24 of the Inheritance Act) is drawn up by a notary in the presence of two witnesses, and the testator verbally expresses his will to the notary. This process ends with the signing of the will by the testator, witnesses and notary.
  • A handwritten will (Art. 25 of the Inheritance Law) must be written entirely by the testator himself, contain the date of compilation and be signed by the testator.

Reserved part

The reserved part represents the part of the inheritance that the law guarantees for certain categories of heirs, thereby limiting the right of the testator to freely dispose of all his property. According to Art. 28 and 29 of the Inheritance Law, the reserved share is determined depending on the presence of descendants, parents or spouse of the heir. This means that a certain percentage of the estate of the heir is necessarily allocated to his close relatives and cannot be limited or canceled by testamentary orders.

  • For descending: The reserved portion is 1/2 in one child or 2/3 in two or more children.
  • For parents: The reserved portion is 1/3.
  • For the spouse: The reserved part is 1/2 when he inherits alone, and 1/3 when the heir has also left parents.

By introducing the concept of a reserved share, the legislator seeks to protect the financial interests of the immediate relatives of the heir, guaranteeing them a minimum share of his property, regardless of his personal wishes and testamentary dispositions.

In what cases can a lawsuit be filed for annulment of a will? Validity and nullity of wills.

Challenging a will is a legal mechanism that allows to attack the validity of a testamentary disposition on certain grounds. Depending on the nature of the defects that can be found in the will, the law provides for two types of invalidity: nullity and destructibility.

Grounds for challenging a will due to nullity

  1. When the will is made in favor of persons who do not have the right to inherit: The will can be challenged as null if it is made in favor of a person who by law cannot be an heir. This includes persons who were not conceived at the opening of the inheritance, born incapable of living, or are unworthy, unless recognized as worthy by the testator.
  2. In case of non-compliance with the procedure for drawing up a will: If the procedure for drawing up the will before a notary or the requirements for a handwritten will are not complied with, this can serve as grounds for challenging.
  3. A will is made in contravention of law, public order and good morals: Testamentary dispositions that are made contrary to law, public order and good morals, or when the condition or burden is impossible, can be declared null and void.

Nullity in the case of a will in favor of a person who does not have the right to inherit

The law on inheritance determines that in order for a person to receive a will, it must be alive at the time of opening the inheritance or, in the case of being a legal person, not terminated. It is also important that it be able to accept the will and be worthy within the meaning of Art. 3 ZN. Persons who were not conceived at the opening of the inheritance or who were incapable of living, as well as those who were determined to be unworthy to inherit, may not inherit by will, unless the heir has expressly recognized them as worthy.

Nullity of a will due to non-complied procedure

The legal requirements for drawing up a will depend on its type - notarized or self-made. The notarial will must be executed by a notary in the presence of two witnesses, and the procedure must follow the provisions of Art. 24 of the Inheritance Act. A self-made will requires that it be written entirely by the hand of the testator, contain a date and signature. Any corrections, corrections or additions must be carefully weighed in terms of their probative power.

Important! According to Decision No. 23 of 05.06.2019 on the city of e. No. 888/2018 of the Supreme Court of Cassation, 1st District “If two dates are indicated in the will, regardless of the reason (intentionally or due to omission), the form prescribed by law is perverted and this has the effect of nullity of the will, unless its text shall contain particulars permitting it to be inferred that the two dates indicate respectively the beginning and the end of its drawing.'.

Nullity in contravention of the law, good manners and morals

The motive for drawing up a will should not contradict the law or good manners. If the will obliges the heir to receive maintenance for life in exchange for a testamentary disposition, this is contrary to the principles of gratuitousness and may result in the nullity of the act. It is important to note that if the unlawful motive is combined with others that are legal and decisive for the will of the testator, the will remains valid.

Important! According to Article 3 of the Bulgarian Law on Inheritance, a person who deliberately killed or attempted to kill the heir, his spouse or his child, as well as the accomplice in these crimes, may not inherit as unworthy, unless the act was committed in circumstances that exclude punishability, or if it is an amnesty the person who incited the heir to a crime punishable by imprisonment or a more severe punishment, unless the conviction is pursued by the grievor's grief and such has not been filed by the person who pleaded or prevented the heir by force or fraud from making, modifying or revoking the will or who destroyed, concealed or corrected his will or knowingly served a false will. According to Article 4 of the Inheritance Act, an unworthy person may inherit if the heir has explicitly recognized him as worthy by a deed with a notarized content or by will. The unworthy, in whose favor the heir made a will, knowing the reason for the unworthiness, without explicitly recognizing him as worthy, inherits only within the limits of the will.

Grounds for challenging a will due to destructibility

Destroyable wills are those that formally meet all legal requirements, but contain vices giving grounds for challenging them. The claim for destruction is subject to repayment with a limitation period of three years from the knowledge of the cause of destructibility, but not later than ten years after the discovery of the inheritance.

  1. Made by a person who does not have the right to bequeath or suffers from a lack of judgment: A will is annulled if it is made by a person who, at the time of its preparation, was unable to make a will due to a minor, placement under total prohibition, or lack of ability to act reasonably.
  2. Made under the influence of error, violence or fraud: A will can also be challenged if it was made as a result of error, coercion or fraud. It is important to note that an error in the motive can be grounds for destruction if the motive is explicitly expressed in the will itself and is the only reason for its compilation.
Important! According to Decision No 141 of 28.02.2003 of the Supreme Court of Justice under the city of e. No 675/2002, II of Act II, “A testamentary disposition is annulled if, at the time of making the will, the person is unable to make a will. Unable to bequeath are persons placed under limited prohibition. In this case, it is examined whether, at the time of making the will, they understand the property and meaning of their actions. Whether this condition is permanent or short-term is irrelevant. The important thing is that it existed at the time the will was drawn up!”

Cancellation of a will due to affecting the reserved shares

It is important to emphasize that challenging a will is also possible when it concerns the reserved shares of the heirs by law. That ground of appeal underlines the importance of the legal protection afforded to certain categories of heirs by ensuring that they receive a fair share of the inheritance irrespective of the testamentary dispositions of the heir.

In conclusion, the challenge of a will can be motivated by a number of serious grounds that affect the legitimacy and fairness of the testamentary dispositions. The legal framework provides for protection for both potential heirs and the last will of the testator, thereby striving for a balance between the interests of all parties.

Important! According to Art. 10. of the Inheritance Law, the descendants of the heir who have died before him or are unworthy are replaced in the succession by law by their descendants without limitation of degrees. Those who died before the heir or unworthy of his brothers and sisters are replaced only by their children or grandchildren, and the inheritance in these cases occurs by knee. Substitution is also allowed in favor of a person who has renounced the inheritance of the ascendant whom he replaces, or who is unworthy to inherit the same.

What is the statute of limitations for challenging a will?

When challenging a will, the limitation period depends on the type of invalidity on which the claim is based. Regarding the nullity of a will, it is important to note that the right to claim for a declaration of nullity is not limited by a limitation period. That is, if the will is considered null and void on any of the grounds listed in the law, interested persons can file a claim for its declaration of invalidity at any time, without limiting themselves from the expiration of a certain period of time.

Important! The acquisition period of real estate obtained on the basis of a void will is 10 years. This limitation period may stop and be interrupted. There is no time limit for declaring a will void, but there is a limitation period, after the expiration of which, even in the event of a void will, the testator in whose favor the will was made will have become the owner by statute of limitations.

On the other hand, in the case of the annulment of a will, which concerns cases in which the will possesses all the legally required elements of validity, but is affected by defects giving rise to its challenge, a specific limitation period applies. The action for the destruction of a will is extinguished by a three-year limitation period, which begins to run from the moment the plaintiff became aware of the grounds for annulment, but not later than 10 years from the opening of the inheritance. This limitation sets a framework for the period of time during which interested parties can take action to challenge the will on the grounds of destructibility.

Is a will with an agreement “against maintenance and custody” null and void?

According to Interpretative Case No 2/2023 on the inventory of the General Assembly of Judges of the Civil Chamber of the VCS, wills that contain an agreement “against maintenance and custody”, that is, wills made both for the sake of already taken care of the testator and with a view to future care that will be provided for him until the end of his life, They give rise to different opinions about their reality. There is debate as to whether such an arrangement is contrary to the principle of gratuitousness of the testamentary disposition and whether, therefore, the will should be considered null and void on the basis of Article 42 (c) of the Inheritance Act (ZN).

According to one view in the case-law, such a will is null and void, since the imposition of an obligation for future care after the drawing up of the will contradicts the gratuitous nature of the will. This view emphasizes that the validity or invalidity of a will is determined not by the result — whether the testator was looked after and sustained during his lifetime, but by the motive which formed the will of the testator.

According to another opinion, when gratitude is expressed in the will for already laid and the expectation of future care, this does not mean that the will has a remunerated character. Such a will is interpreted as having a rewarding character, where the usual motive is gratitude for care, which corresponds to the law and good manners. Therefore, the reasons do not contradict the law, and the will is not void on the basis of Art. 42, b. “c” of the ZN.

The interpretative case stresses that the second opinion is correct, in view of the characteristics of the will as a unilateral and gratuitous transaction. A will, which includes gratitude for past and future care, cannot objectively bind the heir to obligations and therefore does not acquire a remunerated character. The motive for gratitude should not be interpreted as a condition of retribution, but rather as an expression of appreciation that does not undermine the gratuitous nature of the will.

Thus, a will with an agreement “for maintenance and maintenance” is not automatically considered null and void as long as it is an expression of gratitude for the care, without establishing remuneration or a bilateral contract between the testator and the recipient of the will.

Често задавани въпроси

Is it possible for a person who is not an individual to be appointed as an heir by will?

Yes, it is possible. The law on inheritance does not place restrictions on whether an heir can only be a natural person. Legal entities and the state can also be appointed as heirs by will, as long as they exist (for legal entities not terminated) at the time of opening the inheritance.

What are the grounds on which a will can be challenged as null and void?

A will can be challenged as null and void on a number of grounds, including if it was made for the benefit of a person who by law cannot be an heir (for example, was not conceived at the time of opening the inheritance), the procedure for drawing up the will was not followed, or if the testamentary disposition is contrary to the law, public order and good morals Fri.

What is the limitation period for challenging a will to be destroyed?

A claim for contesting an expunishable will is subject to repayment with a three-year limitation period, which begins from the day on which the plaintiff became aware of the reason for the destruction, but not later than ten years after the opening of the inheritance. If the cause of destruction was known before the opening of the inheritance, the three-year period begins to run from the moment of discovery of the inheritance.

Can a will made with the motive of “gratitude for the care that will be taken for the rest of my life” be challenged as null and void?

On the basis of case law and interpretative judgments, wills made in gratitude for the care that has been taken and which will continue to be given to the testator for the rest of his life are generally not considered null and void, since they do not impose an obligation and retain the gratuitous nature of the testamentary disposition. Such a will is generally considered to be remunerative rather than remunerative, and as such does not contradict the legal requirements for the validity of the will.

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