Contesting a will
In this article, we will touch upon the contesting of a will and give a closer look at three options required to contest it. You can read more about it below.
According to the Croatian Law on Inheritance, inheritance is due to the death of a natural person, at the moment of his death and it can be legal or testamentary. Everyone is entitled to designate a successor for the event of his own death, and also to limit and burden his or her right. In a will the testator disposes of his property in the event of death and this will can be drafted by any person capable of judgment who has reached the age of 16. The will is null and void if the testator was incapable of judgment at the time of drafting or did not reach the age of 16, but there is a rebuttable legal presumption that at the time of drafting the testator was capable of judgment.
The will can be contested because of:
1. Defects of the will of the testator
2. Lack of prescribed form
3. Disposition contrary to the right to the necessary part
Contesting of will due to defects of the will of the testator
The will will be nulled upon request if the testator was persuaded by threat or force to make it or if he chose to make it because he was deceived or being misled.
The request can only be submitted by a person who has a legal interest for it, within one year of finding out about the causes of nullity, and not later than ten years after the declaration of will.
Against the person who caused the defects of the testator’s will, or who knew or had to know about it, annulment of the will can be requested within 20 years from the day of the declaration of the will.
If only certain testamentary provisions have been made under threat or force, by fraud, or by mistake, this does not entail the invalidity of other provisions if they can exist without that provision.
Case law defines a distinction between two types of coercion: physical and psychological coercion or threat. Physical coercion involves the use of physical force at the time of making a statement (abuse, personal injury, physical torture, etc.), while psychological coercion involves pressure at the will of the one who makes the statement by inducing fear of a future danger that will occur to him or to people close to him or to the third parties (Supreme Court of the Republic of Croatia Rev 1694/1996-2).
Contesting of will due to lack of prescribed form
A will is valid if it is made in the form prescribed by law and under the assumptions provided by law. Forms of wills prescribed by law are private wills (single-handedly written will, written will before witnesses), public willand oral will (only in extraordinary circumstances before two witnesses present at the same time).
Due to the lack of form, contesting of the will may be requested after the opening of inheritance only by a person having a legal interest, within one year from the day of learning of the will, and for a maximum of 10 years after the declaration of the will.
Contesting of will due to disposition contrary to the right to the necessary part
The necessary successors are the descendants of the decedent, his adopted children and their descendants, as well as his spouse. The decedent’s parents, adoptive parents and other ancestors are necessary successors only if they are permanently incapable of work and lack the necessary means of subsistence.
The necessary part of the descendants, adopted children, their descendants and of the spouse is one half, and the necessary part of all other necessary successors is one third of the part which would belong to each of them in accordance with the legal order of inheritance.
Dispositions in the event of death, that are contrary to one’s right to the necessary part are null and void and the necessary part is violated when the total value of disposition of the will is such that the necessary successor does not receive the full value of his necessary part.
Only the necessary successors can claim the right to reduce the disposition of the will and only within 3 years of the declaration of the will.
From all of the above, it is clear that there are different ways of contesting a will, and depending on the particular case, it is advisable to seek legal assistance.