Most citizens are interested in the legal side of the will of property, namely, whether it is possible to challenge the will for an apartment after the death of the testator in the event of an unequal division of property between relatives. This is especially true of an apartment when the deceased wants to transfer it to third parties, for example, an acquaintance, friends, organizations or for charitable purposes. In this case, legal heirs can appeal against the deceased person's decision in court.
In what cases can you challenge a will for an apartment
It is possible to dispute the inheritance for any property, including real estate, according to the Civil Code. According to the law, it is determined that such a will is a documented act of a person's will on the distribution of his property after death. According to the document, the property is distributed among relatives and the specified persons. If there are disagreements, then in some cases, they can challenge the will.
In what cases it is possible to challenge a will is considered in the Civil Code of the Russian Federation in article 1124, 9, 171, 62 - the rules and forms of the will, the characteristics of the testator:
- general grounds - any transaction that is recognized by a court decision as invalid, cancels the will of the deceased in relation to the specified heirs, the document was drawn up by an incapacitated person, in an insane state;
- special grounds - errors are found in the document or the testator is recognized as incapable of drawing up a legitimate document. The document was drawn up by a person with limited mental capacity (for example, taking psychotropic drugs, painkillers, drugs for brain activity, also old people with Alzheimer's, dementia, etc.). A testator with a difficult life situation cannot adequately draw up a document on the inheritance of property.
IMPORTANT - if, when challenging the property, the fact of fraud of third parties is revealed, then a criminal case is legally initiated against them. a special point worth noting is an illegal attempt to transfer by will of a municipal apartment or the transfer of a part of it (claiming a share in the apartment). It is difficult to challenge a will for an apartment if it was drawn up in an emergency (in an emergency) and was drawn up in a closed form.
The reasons considered are frequent practical cases for the problem - is it possible to challenge the will for an apartment after the death of the testator. If the relatives decide to appeal the decision of the inheritor, then the document will be studied by lawyers individually for each case of appeal. Since, if there is a suspicion of a violation of the compilation or the process of writing documentation, or when the rights of the heirs of the first stage to housing are infringed, it becomes a reason to write a statement of claim to challenge the will of the deceased in court.
Cancellation of a will is possible if the heirs of the first order are recognized as unworthy applicants in the following cases:
- forced to sign a document;
- committed criminal acts in relation to the deceased;
- showed a selfish motive;
- the parents of the deceased were appointed heirs, but they were officially deprived of parental rights to children (inheritors);
- the heirs did not fulfill their legal obligations in relation to the deceased (for example, did not provide proper maintenance).
A special case is the proof that the deceased suffered from mental illness or disorders that prevent adequate preparation of the document. if a person was not registered with a psychiatrist initially, then it is extremely difficult to prove the presence of the disease. A thorough examination of a forensic psychiatric appointment will help to prove insolvency at the time of signing the testamentary papers. The bailiff analyzes the hospital record of the deceased, taking the last medications for a certain period of time, using testimony about the behavior of the deceased.
The result of the examination is a decision on the state of the testator at the time of signing the documentation or drawing it up. Expression of will in this case is not sane.
Who has the right to challenge the will of the deceased
Article 1131 of the Civil Code regulates the list of those who can challenge the will for an apartment or has this right. According to the law, who has the right to challenge a drawn up will after inheritance:
- if the direct heir (first priority) is the spouse of the testator, his parents or children. if there are no such, then the legal queue is transferred to the next order (second, third);
- if the will is challenged in court, then the persons indicated in it are reviewed legally.
The following persons can also dispute the document:
- heirs with the exclusive legal right to the inherited apartment, in the absence of a will at the required time;
- third parties whose property the inheritor indicated in his will;
- the owner of the apartment who did not give his consent to the disposal of the property (for example, the testator could dispose of his own share in the apartment, but in no way all the housing in full).
ATTENTION - it is necessary to take into account that the will is declared invalid by the court, but if before it there were still written notarial instructions on the disposal of the property, then they have legal force. For example, a will in two parts, where the first (early date of drawing up) has already transferred the ownership of the apartment, in the second will, written after, the apartment is transferred to another heir.
In any case, those who have the right to appeal the document must have evidence of the absence of analogs of the document, additions and explanations to it, solid evidence for the recognition of the papers as invalid. clerical errors and minor inaccuracies made by the deceased during the preparation of the document cannot be accepted by the court as grounds for dispute, if they do not affect the true essence of the text and the transmitted will.
Deadline for filing a statement of claim in court
To find out how you can challenge the will for an apartment and whether the inheritors will get it, it is possible by referring to the Civil Code of the Russian Federation. Citizens who have evidence for protest can submit it to the court through a statement of claim.
According to article 181 of the Civil Code of the Russian Federation, a will is disputed within a period of no more than 3 years from the date of its entry into force (six months after death). The period of writing the statement of claim also falls on the period after the recognition of the inheritor's document as null and void, inadequate or unlawful; the recognition of the person who wrote the paper as incompetent or insane is also considered.
Within a period of up to 1 year, the heirs can challenge the document in the case when it is proved that the documentation was not written of their own free will, when physical and psychological acts of a violent nature were applied to the citizen.
The beginning of the term for filing a statement of claim with the court is considered from the moment the claimant for the inherited property receives information that his inheritor's rights have been violated.
If you are dissatisfied with the division of property, you should not wait 6 months after the death of the testator for the opening of the inheritance and the transfer of the certificate to the persons indicated in the documentation by the notary. In this case, it will be more difficult to sue the apartment, since people will already register it for themselves (and they can be family, with small children who are entitled to living space, disabled). It is more advisable to go to court before opening.
How to act correctly
There is a procedure - how to challenge a will for an apartment, which is represented by the following operations:
Preparation of a statement of claim - write or fill out a form, you can download it via the Internet or go to court for a form. Attach the following documents to the application - confirmation of kinship with the deceased, evidence for a protest in writing (for this, make a list of possible grounds for a dispute in advance and check them), a receipt for payment of the state fee for the provision of services in court. Send the package of documents to the court and wait for the summons.
If there are witnesses, they must be warned in advance about their participation in the trial and the time of its passage. Witnesses can be:
- relatives;
- Therapist;
- the deceased's neighbors;
- close acquaintances of the deceased, etc.
During the court session, you can bring the necessary documents if they were received later than the filing of the claim.
REFERENCE - if the court recognizes the alienation of property (housing), then you can apply for the arrest of the apartment.
The result of the court session is the decision to satisfy or reject the claim. If the outcome is positive, the will is invalidated, the plaintiffs can enter into inheritance rights under the law. If negative, then a second appeal is made through an appeal.
Will form for an apartment without appeal
Ideally, how to draw up a will for an apartment so that it is not challenged, you must adhere to the following rules:
draw up in accordance with the legislative form - in writing, in the presence of witnesses (disinterested persons), with the signing and transfer of the document to the notary; the content must be formulated legally correctly, competently, with precise indication of dates, names, location and name of property; conduct a medical examination to obtain a conclusion about the clarity of mind or the lack of registration in neuropsychiatry, narcology, etc.
An excellent safety net will be the presence of a lawyer, video or audio recording of the process.
Conclusion
A will for an apartment can be challenged in court in accordance with the law. To do this, prepare documentation, evidence for protest. The relatives of the deceased, direct heirs and persons recognized by the court as worthy of inheritance have the right to challenge.
