Not every misunderstanding between heirs justifies the annulment of a will. The matter depends on the specific issue: failure to comply with the legal form, lack of discretion, or a defect of consent can raise the issue of validity; the violation of the succession reserve usually has a distinct remedy, the reduction of excessive liberalities.
First check the form of the will
The Civil Code recognizes the holographic will and the authentic will. The holographic will is null and void if it is not written in its entirety, dated, and signed by the testator’s hand. An authentic will involves completing the notarization procedure. However, the appearance of a document or an incomplete copy are not sufficient for a conclusion: keep the original and request verification of the document and the succession file.
When the validity can be challenged
The will is valid only if the testator had discernment and the consent was not vitiated by any defect. Depending on the evidence, the person’s state of health at the time of drafting the will, their ability to understand the act, the pressures exerted, the inducing of error, or the existence of intentional manipulation may be relevant. The mere fact that a will benefits an heir or differs from the expectations of the family does not prove lack of discernment or fraud.
In a dispute regarding the authenticity of a document or signature, the original, comparison notes, and a graphological expertise can be relied upon. For discernment, medical documents from the recent period, witness statements, and the circumstances in which the document was prepared may be relevant. The court assesses the evidence together; no single document automatically establishes the solution.
The violation of the successor’s reserve does not automatically mean the annulment of the will
The surviving spouse, descendants, and privileged ascendants are reserved heirs, and each of them has a half of the legal quota that would have been due to them in the absence of the liberalities. If the will or donations exceed the available quota, the reserved heir may request a reduction under the law. The remedy can limit the effects of excessive dispositions without nullifying the entire will.
The term depends on the request made.
There is no single one-year term for any challenge to a will. Absolute nullity, invalidity for defects of consent, and action to reduce the liberalities have different grounds and prescription periods. For reduction, the term provided for by the Civil Code is, as a rule, three years, with special rules regarding the starting point if the liberality was not known. Quickly check the ground, the date of opening of the inheritance, and the moment the cause is discovered; delay can affect rights.
What to do before starting the process
- obtain the will and the documents from the notarial procedure, keeping the originals;
- verifies the certificate of heirship, the assets, donations and shares of succession;
- records chronologically the circumstances of the preparation of the will and the available evidence;
- determines whether to pursue the annulment, the nullity determination or the reduction of excessive provisions.
If there is a real dispute, the notary can suspend the succession proceedings and direct the parties to the court, according to the law. Jurisdiction, the parties summoned to court, and the deadlines are determined according to the specific request and the deceased’s last domicile.
Consult Civil Code, Articles 1034–1050 and 1086–1095, as well as Law no. 36/1995. For assistance in inheritance disputes, see the page as a testamentary right. The information is general; a lawyer must verify the act and the applicable deadlines for the specific case.
