When is a will invalid and how to contest it?

Wills and their types

A will is a document by which the testator (the person making the will) determines how his or her property will be dealt with after his or her death. It is one of the main inheritance titles that allows a person to decide on the distribution of his or her property among his or her heirs according to his or her own wishes. The will may specify specific heirs, conditions or provisions relating to the administration and transfer of the property.

The testator can change or revoke the will at any time. In the absence of a will, succession by intestacy comes into play, where the heirs are determined within classes of succession.

There are two main types of wills:

A will made by private deed

This type of will is made by the testator himself and does not require the presence of a notary. It is divided into two subgroups:

• Holographic will – a will written and signed by the testator’s own hand. A holographic will does not require witnesses, as the mere writing of the will in the testator’s own hand is sufficient proof of authenticity.
• Allographic will – a will written in a different hand than the testator’s own handwriting (e.g. on a computer or typewriter). In the case of an allographic will, it must contain the testator’s signature and be witnessed. There must be at least two witnesses and they must certify by their signature that the will was made in their presence and with the testator’s knowledge. These witnesses must be neutral, i.e. they must not be heirs and must not have family ties to the testator.

A will made by public deed

This type of will is made by a notary and takes the form of a public deed. This form provides a high degree of legal certainty because the notary ensures that the will is made in accordance with the law and is free from legal defects. The notary will also register the record of the will in the Central Register of Wills, which guarantees that it will be known after the death of the testator.

Invalidity of a will

A will may be considered invalid for various reasons, especially in the case of wills made by private deed. Invalidity may be absolute or relative:

Absolute nullity

Absolute nullity means that the will is regarded as if it did not exist at all and has no legal effect. The grounds for absolute nullity include:

• Lack of the requisites of a legal act – The will must meet certain formal and substantive requirements laid down by law (for example, the testator’s signature in the case of a holographic will or the presence of witnesses in the case of an allographic will). If these requirements are missing, the will is absolutely invalid.
• Lack of legal capacity of the testator – The legal capacity of the testator is necessary for the valid making of a will. If the testator did not have full legal capacity at the time of making the will, for example, if he or she was a minor or deprived of legal capacity, the will is absolutely invalid.
• Incapacity of the testator due to mental disorder – If the testator suffered from a mental disorder at the time of making the will which significantly affected his or her ability to make rational decisions about his or her property, the will will will be absolutely invalid. This ground reflects the protection of the testator’s will so that his decision is not made under the influence of a medical impairment.
• Contrary to law or morality – If the content of the will is contrary to applicable law or morality (e.g. if it contains terms that are contrary to ethics or interfere with the fundamental rights of persons), it is considered absolutely void.

Relative invalidity

Relative nullity of the will means that the will is null and void only in a certain part and in connection with the omission of a non-domiciliary heir, i.e. an heir who is entitled by law to the obligatory share of the inheritance (descendants of the testator).

If the will omits such an heir or fails to provide him with the minimum obligatory share, that heir may claim the relative nullity of the will. However, this type of nullity does not arise automatically – the non-missing heir must actively assert it before the court within the statutory time limit, otherwise the will remains valid.

Contestability of a will

A challenge to a will on the grounds of its relative invalidity is therefore only possible from the position of a non-domiciled heir. You can read how it works in this case in our article on the non-nominative heir. We will therefore focus here on contesting for absolute nullity.

In some situations, a will is considered absolutely void automatically when it is probated, especially in the case of wills made by private deed. This may be the case, for example, where an allographic will lacks the testator’s signature or contains terms that are contrary to good morals.

However, it may be the case that the conditions for the absolute nullity of the will are disputed. For example, it may be suspected that the testator was under pressure from one of the heirs when making the will or even that the will is forged. If this is the case, then a criminal offence of fraud will have been committed and a criminal complaint should be made.

How to avoid probate problems?

In order to avoid all these problems with your will, we recommend that you have your will drawn up in the form of a public deed by a notary public. Not only will he or she draw up the will in accordance with the law and all the necessary formalities, but he or she will also safely store and enter it in the Central Register of Wills. There is therefore no risk that the will will be lost or that there will be doubts about its validity.

And if you still insist on making your own will at home, then remember the information that should not be missing:

• Identification: the will should begin with the identification of the testator, i.e. your identification. Include your name, surname, date of birth and place of residence.
• Disposition: Next, specify how your property is to be distributed. Identify your heirs (the persons who are to inherit) and specify what property you are bequeathing to them. Again, be sure to properly identify the persons, i.e., their first name, last name, date of birth and place of residence. You can also appoint substitute heirs in case the primary heirs are unable or unwilling to inherit.
• Date and signature: The will must contain the date on which it was made. This is important to determine the timeliness of the will and also to evaluate whether it was made before or after certain events that could affect the succession (for example, the creation of other wills). Your handwritten signature must also not be missing.
• Witnesses: If you did not write the will in your own hand, you will also need two witnesses. These witnesses must be present when the will is signed and must add their signatures to yours. The witnesses must not have a personal interest in the will (e.g. they must not be future heirs).

Summary

A will is invalid if it does not meet the legal requirements (e.g. missing signature in the case of a holographic will or the presence of witnesses in the case of an allographic form). In the case of absolute nullity , the will is viewed as if it had never existed, while relative nullity occurs if the will omits a non-nominative heir. We strongly recommend that anyone considering making a will should consider having it drawn up by a notary or lawyer to ensure its formal correctness.