Тheoretical and practical problems of invalidity of a will as a method of defence of the rights of heirs

Relevance of this article is due to the fact that inheritance is one of the most common methods of acquiring property title by individuals. The importance of inheritance under the will is seen in the provisions of the Book Six of the Civil Code of Ukraine, where provisions as to inheritance under the will precede provisions as to inheritance under the law. Therefore, legislation prioritizes the will of the testator over inheriting under the law. For this reason, legislation must contain specific requirements as to the content and form of the will and its formation, which determine validity of the will.The purpose of this article is to find gaps and contradictions in civil law and judicial practice when it comes to study of invalidity of wills as a method of protection of the rights of heirs, as well as suggestions as to possible solutions. The article examines the main grounds and the order of invalidating a will, which is one of the methods of protection of the rights of heirs in legal relations. It is noted that lack of a detailed list of the methods of protecting of the rights of heirs in the legislation of Ukraine has a negative impact on judicial practice, given that often the heirs would use inappropriate methods of protection. For instance, instead of asking to invalidate the will they would apply to annul the will. The article analyzes current legislation in Ukraine, judicial practice of dealing with cases requesting to declare a will as invalid. It also determines the main errors made by courts when deciding on such claims. The opposing legal positions in cases declaring a will as invalid due to the same grounds are investigated. It is noted that a will, same as any unilateral transaction, can be declared invalid. However, civil legislation lacks specific grounds and the order of declaring wills as invalid and provides for two types of invalid wills, which causes issues in qualifying an invalid will as void or disputed and inconsistent legal practice when deciding such category of cases.The article looks into the relationship between the provisions as to declaring transactions and wills as invalid and determines specifics when it comes to declaring the will as invalid. Different approaches as to determining the moment as of which interested persons are entitled to file a legal claim to declare a will invalid are analyzed, outlining the author’s position on this subject. A list of requirements, failure to follow which during the conclusion of the will shall lead to its invalidity, is made.

Doi: 10.31359/jnalsu.29(2).2022.157-177