Find out which defects lead to the absolute or relative invalidity of a will and how a dispute over its validity is resolved – before the notary or by a court action.
A will is a unilateral legal act by which the deceased disposes of their property in the event of death. If valid, it takes precedence over intestate succession. Legal defects in a will may lead either to its absolute or its relative invalidity.
A will must be made in writing – an oral will has no legal effect. A will may be absolutely invalid, for example, because of:
In practice, a combination of several contested issues may arise at once – in the interests of procedural economy, all of them can be resolved in a single set of proceedings.
If a dispute over the validity of a will turns solely on a legal assessment, the notary decides directly. If a contested fact needs to be clarified, the notary – after an unsuccessful attempt at settlement – refers the heir whose inheritance right appears less probable to assert the matter by bringing an action (§ 194 of the Slovak Code of Civil Non-Contentious Procedure).
A person who claims to be an heir and challenges the validity of a will may also bring a separate action for a determination of a legal fact (§ 137(d) of the Slovak Code of Civil Contentious Procedure) – not an action directly for a determination that the will is invalid, since the current legal framework does not provide for such an action. The claim must therefore be directed at a specific fact, for example a determination that the signature on the will is not the deceased's, that the deceased made the will while suffering from a mental disorder, or that the witnesses' signatures are not those of the witnesses.
A will may also be relatively invalid – if it passes over forced heirs contrary to § 479 of the Slovak Civil Code (minor descendants must receive at least their entire statutory share, adult descendants at least half of it). If these facts are not contested among the heirs, the matter is decided directly by the notary, since only a legal assessment is involved (§ 193 of the Slovak Code of Civil Non-Contentious Procedure). If the notary disregards the relative invalidity, this can be challenged by way of an appellate remedy directly in the inheritance proceedings.
We take the view that a determination of the relative invalidity of a will can also be sought by a separate action for a determination of a legal fact – in our opinion this follows from § 40a of the Slovak Civil Code, although there are also contrary views in professional practice.
Finally, when assessing the validity of a will, the general principle of interpretation applies that a legal act should be interpreted so as to be valid rather than invalid.
Are you challenging the validity of a will, or is someone trying to contest the validity of a will made in your favour? We will assess the specific grounds and prepare the necessary filing.
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