Will

If a bequeather has made a valid will, the persons whom he or she has named in the will as his or her successors will succeed him or her. If the bequeather has named a relative in descending line (child, grandchild, etc.) as a successor, but the latter has died after the will was made and before the bequeather’s death, his or her share of the bequest will be transferred to his or her descendants, should there be any.

The bequeather cannot, by means of the will, deprive his or her incapacitated relatives in ascending line (parent, grandparent, etc.), an incapacitated descendant or an incapacitated spouse of the share of the bequest that they would inherit, should the succession occur in the manner prescribed by law; their share of the bequest cannot be reduced either. That would be possible only if the successor in question has entered into an agreement of renunciation of succession with the bequeather. Spouses have the opportunity to make a mutual will at a notary’s office by naming each other their successors. That means that should one of the spouses die, his or her entire estate is transferred to the living spouse. In such a will it is also possible to name another successor in case the other spouse is dead.

Succession can be tied to certain conditions in a will; in that case, the mentioned person can succeed either before or after the arrival of the set condition. If the will concerns only a part of the bequeather’s assets and no succession contract has been entered into with regard to the rest of the assets, the assets not covered by the will are inherited in the manner prescribed by the Law of Succession Act.

How to make a will

The Law of Succession Act sets very strict formal requirements for a will. If these are not followed when the will is made, the will is considered invalid and succession proceeds pursuant to law. A will should definitely be made if there is an intention to leave a bequest to a person (or persons) who would, by means of intestate succession, inherit nothing or less than what the bequeather wants to leave him or her (or them).

The options are as follows:

  • making a notarised will
  • storing the will with the notary (notarised wills)
  • signing the will with witnesses present
  • writing the entire testament in one’s own handwriting (domestic wills).

A notarised will is made by a notary in accordance with the wishes of the bequeather; however, the bequeather also has the opportunity to present a self-made will to the notary. Such a will must be signed with the notary present. If the maker of the will has a good reason (illness, physical disability, etc.) for not being able to sign the will on his or her own, another person (who must not be the notary, a person related to him or her, the notary’s spouse, a relative of the latter, or an employee of the notary’s office) may do so on his or her behalf. The notary and the maker of the will must be present during such signing, of course.

The maker of the will may store his or her will in a closed envelope with the notary, affirming that it is indeed his or her will. A special legal instrument is drawn up about it and signed by the maker of the will and the notary. A will stored with the notary can be taken out at any time. Another legal instrument is drawn up in that case.

A will signed with witnesses present must be signed by the maker of the will in the presence of at least two persons of active legal capacity (at least 18 years of age and in good mental health). Right after the maker of the will the witnesses also sign the will, confirming that the maker of the will signed it on his or her own and that they judge him or her to have active legal capacity and the capacity to exercise will. The date and year must also be marked on such a will. The witnesses must be present during the signing at the same time and they must be aware that the document is the signatory’s will. The witnesses need not know the content of the will. A person who is a beneficiary of the will, or whose relative, spouse or a relative of the latter is a beneficiary of the will, cannot serve as a witness; in that case he or she would lose the right to succession on the basis of that will.

A will can also be made on one’s own by writing it from start to finish in one’s own handwriting and equipping it with the date and year when the will was made. If these requirements are not followed, the will is considered void. When six months have passed from the making of a holographic (i.e. hand-written) will and the maker of the will is still alive, the will expires.

General principles of making and revoking a will

The language used should be as clear and unambiguous as possible; persons and objects should be described in a manner that leaves no doubt as to who and what has been meant. Ambiguities and incomprehensible orders in a will are interpreted in a manner prescribed by law or ignored. Hence, it is in the interests of the maker of the will to express his or her testamentary intentions clearly, so that they could be followed as accurately as possible. Furthermore, the will should be stored in a manner that makes it possible to find it quickly after the death of the maker of the will. One such option is provided by the succession register, for example.

A will can be revoked by means of a succession contract, a new will or (in case of domestic will) its destruction. If only some parts of the new will are in conflict with the old will, the other parts of the old will remain valid. A will can also be voided by court after the death of the maker of the will in cases provided by law. It must be indicated on the will that it constitutes a will (title “Will”). In addition to the data mentioned in the preceding sections, the will must be equipped with the name, date of birth and place of residence of the maker of the will, as well as the names and dates of birth of the successors, and the names and places of residence of the witnesses.

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Compiled by: Ministry of Justice