Together with an expert, we tell you what is the danger of a will with a condition and what it can be
/ Photo: Getty Images, Collage: Today
Could it be that the person named in the will could not receive the inheritance property, even if everything is fine with the document? Legal expert’s response Yes it is possibleif the will was made with a condition that the heir did not fulfill.
Segodnya spoke with Konstantin Balandin, a legal adviser – a lawyer at the Lex Plus Law Firm, and are ready to tell What is a conditional will.
What is a conditional will?
Therefore, in part 1 of Article 1242 of the Civil Code of Ukraine, it is established that the testator may determine the emergence of the right to inherit from the person appointed in the will, the presence of a certain condition both related and unrelated to her behavior.
For example, the presence of other heirs, living in a certain place, the birth of a child, education, etc.
The outstanding German poet Heinrich Heine bequeathed his entire legacy to his wife, Eugenia, who, by the way, was a rude, ignorant woman.
But Heine’s will contained one condition – Eugene’s legacy would be received only if she married after his death.
“Then there will be at least one person in the world who will sincerely lament my death,” he explained his strangeness.
Therefore, a conditional will means that the person named in the will as the heir acquires the right to inherit if a certain result (condition) is achievedstipulated by the will.
“Unlike the story with Heine, Ukrainian legislation provides that the condition of the will must be fulfilled at the moment of opening the inheritance (death of the testator), and not after this event. If the condition of the will is not fulfilled at the time of death, the right to inheritance does not arise,” – says the lawyer.
What could be the condition?
Regulations of the Civil Code of Ukraine does not establish clear requirements for the condition of the willwhich may or may not be related to the behavior of the potential heir.
The law states only exemplary examples what the condition might be:
- the presence of other heirs;
- living in a certain place;
- birth of a child;
- getting an education, etc.
The law provides that a condition that is contrary to the law or the moral principles of society is insignificant.
If everything is more or less clear with inconsistency with the law, then the moral foundations of society are an evaluation category. Each person has their own criteria for evaluating morality, which may not coincide with yours.
“In order to avoid problems for the heirs in the future, we advise you to be restrained in fantasies and avoid establishing a testamentary condition that will require an assessment of its compliance with the moral principles of society,” advises Konstantin Balandin.
Taking into account judicial practice, it can be said that when considering by the courts disputes regarding inheritance under a will with a condition, the court evaluates the inheritance condition, in addition to legality and compliance with the moral principles of society, also criteria of clarity and feasibility.
The criteria for clearly defining the condition of a will suggest that the condition must be clearly defined.
That is, from the text of the terms of the will should be clear with some event, state, phenomenon, behavior, the emergence of the heir’s right to inheritance is connected.
If the condition of the will is described in the test vaguely and not specifically, after the opening of the inheritance (death of the testator), disputes may arise between the heirs regarding the inheritance property.
“However, if the condition of the will is a form of your sarcasm and is aimed at ensuring that your heirs do not inherit property, but squabbles and litigation, be sure that lawyers will appreciate your humor and make good money on it,” says the expert.
At the same time, the interpretation of the text of the will by the court can be a form of solving the problem of the fuzzy condition of the will.
The condition of the will is assessed by the court regarding its feasibility, that is, the real possibility of its implementation, achievement, occurrence. A condition of a will that cannot be executed is deemed to be which is not stated in the will.
However, the reality of achieving the conditions of the will, as well as compliance with the moral foundations of society, is an evaluation category. The determination of the degree of feasibility of the conditions of the will is influenced by many both objective and subjective factors, some of which cannot even be foreseen. These types of testamentary conditions should be avoided.
A person appointed in a will has no right to demand that a condition be declared invalid if he did not know about it, or if the occurrence of the condition did not depend on him.
The Civil Code prohibits a notary, other official or official certifying a will, witnesses, as well as an individual signing a will instead of the testator, to disclose information before the opening of the inheritance on the fact of drawing up a will, its content, cancellation or amendment.
Thus, the potential heir can find out about the condition of the will by the time of the death of the testator only from the heir.
Therefore, the fulfillment of the condition of the will largely depends on whether the testator informs the person designated in the will as the heir under the condition about this condition.
The legislation does not limit the testator in determining the conditions testament, it can be an action, event, phenomenon, state, which may be associated with the heir or his behavior, and not related to him.
“If conditions such as education, the birth of a child, marriage can be confirmed by a diploma, birth certificate and marriage certificate, respectively, then with confirmation, for example, getting rid of alcohol or drug addiction can be difficult,” – gives examples expert.
Such conditions, as a rule, are confirmed by a court decision establishing a legal fact. When applying to the court about such a decision, be careful, the court must establish the existence of a legal fact precisely at the time of opening the inheritance and in no case later.
“Today” used to write what would happen if the inheritance was not issued in time, and they told how not to inherit other people’s debts.