8 factors to consider in order to avoid drafting an invalid will
It is fair to say that the most memorable events in a person’s life are the unexpected twists and turns of fate, which, when they occur, provide a sense of security in knowing that the material and moral assets built up over a lifetime are safe. The best way to ensure that the unpredictability of the future becomes a certainty is to write a will, as this is the best way to reflect the testator’s wishes. However, it is essential that the will is written in the right way, otherwise the will, which is the basis of security, can easily become the starting point for conflict between relatives and thus a source of damage to relationships. In this article we will look at eight points that can guide you through the maze of writing and drafting a valid will.
In order to draft a valid will, it is important to be aware of the different types of wills, as the way in which they can be made and the way in which they are made vary according to the type.
|Public service regulations
|Written private will
|Holograph, so-called handwritten will
|Allograph, a will written by someone else
|Will deposited with a notary
|This is a will drawn up by a notary.
It is important to note that only a person who is blind, illiterate or unable to read or sign his or her name can make a valid will of this type.
|Handwritten in the testator’s own hand, handwritten from beginning to end and signed by the testator himself, and, if there are several pages, numbered individually.
|A will written on a computer or typewriter, or a will drawn up by a solicitor.
It must be signed by a witness and by the testator, and the pages must be numbered consecutively if there are several.
|In the case of allographic and holographic wills, the testator has the option of depositing the will with the notary in person.
One of the first things that the notary will check when the testator dies, i.e. when the estate is opened, is whether the testator had a will, because the succession begins with a testamentary succession in the first instance. If the testator did not make a will or if the existing will has been successfully contested by a person who would have inherited if the will had been invalid, the legal succession takes the place of the will and the succession goes first to the descendants and the spouse or, in their absence, to the ascendants.
The will must show that the testator made it personally and that it contains a declaration in the event of his death, all of which are grounds for the document to have testamentary status. In the absence of these elements, the will cannot exist. The existence of these conditions is mandatory in the probate procedure and must therefore be verified by the competent authority, since the question of the validity and effectiveness of the will can only be raised afterwards.
On the basis of the wills drawn up by our office and the wills we have seen in various probate proceedings, we have compiled the most important points to be taken into account when drawing up a will. It is important to note, however, that even if these rules are followed, it is still worth consulting a lawyer with experience in inheritance law to ensure that, in addition to the correct formalities, the content of the will fully reflects the testator’s wishes and complies with the relevant legislation.
The 8 factors can be broken down into 4 to 4 parts to ensure that the best possible will is drafted, both in terms of form and content.
How can from a legal point of view a will be formally correct?
When the idea arises that someone wants to leave their assets to their own will rather than to the standard regulations under the law of succession, the first thing to consider is exactly what assets should be settled. In the case of handwritten wills, it is more likely that no one knows about the existence of the will and that the notary is not notified of it during the probate procedure, or that even if the notary is aware of its existence, the formal elements do not comply with the rules of validity, which means that the will cannot be taken into account. This lack of formality may relate to the signature of the testator or of the witnesses (if the will is not written in the testator’s own handwriting) or to the continuous numbering of the pages, possibly with an indication of the date.
For all these reasons, it is advisable to seek the advice of an expert when drafting a will, who will be able to advise on the formalities and also on the content, since the will may fail the test of validity on the basis of its adequacy. Another important point is that, in the case of a simple will that has been legally verified, the notary is entitled to state in the probate proceedings that, in the absence of the will, the estate will be transferred in accordance with the legal succession procedure. However, it should be stressed that only the court has the power to declare the content of a will invalid in its judgment in an action for the invalidity of a will.
What should be done if the testator wishes to leave his assets to a person of his choice during his lifetime?
Our firm has advised on a number of cases where the testator wished to regulate the succession of his assets in accordance with his will during his lifetime. The contesting of a will, and the ensuing dispute between relatives, can be a source of contention if the contents of the will contain a provision that may not be in accordance with reality or may not reflect the testator’s wishes in accordance with the law.
One such issue may be whether the testator intended to disinherit the person or relative in question or simply to exclude him or her from the succession. The wording and legal consequences of each are quite different. In the case of disinheritance, the specific reason must be formulated and substantiated, for example, if the relative has no connection at all, is unworthy for some important reason, has committed a crime to the detriment of the testator or has seriously breached the legal obligation of maintenance. In these justified and specified cases, the disinherited person will not even be able to claim a share of the estate in the probate proceedings and will in fact be disinherited from the entire estate.
Conversely, the disinheritance may be made either by not naming the person concerned, i.e. by specifically naming another heir in the will, or by specifically excluding the relative concerned by name. In this case, however, the person is not excluded from the entire estate, but can claim a share of the estate. The other heirs are obliged to pay the compulsory portion, which is a one-third share of the relevant part of the estate.
In conclusion, a number of formal and substantive factors need to be taken into account when drafting a will in order to ensure that the testator’s actual wishes can be carried out when it is necessary to apply the will, and it is recommended that the succession and the assets are precisely defined. A proper will will cover all the issues that the testator wishes to regulate, while respecting the rules of succession and avoiding the invalidity of the will.
Our law firm can help by advising on the preparation and drafting of a will in accordance with the client’s wishes and, if necessary, by registering it with the Hungarian Bar Association, thus ensuring that the client receives sound legal advice and a complete service from negotiating the contents of the will, through its drafting, to the completion of the registration process.
If you are of the opinion that you would like to leave the assets you have built up during your lifetime to your future heirs in accordance with the inheritance laws and you need legal advice on this matter, please contact our office.
dr. Szoboszlai Márta
dr. Bajcsay Gergely
Please note that the general information contained in this article is for informational purposes only and does not constitute legal advice. We accept no liability for any misinterpretation of the above information or for any changes in the law which may have occurred in the meantime. If you have a specific question or legal problem, we are able to provide individual advice after consultation with our office and after a full investigation of the case.