In the following blog post, I will briefly explain the probate procedure, with special regard to the case when a testament has survived the deceased (testator) (probate procedure in the case of a testament).
The essence of the probate procedure are the formal, procedural rules that determine the heirs of the testator’s property. Inheritance is a title to property, i.e. the heir becomes the owner of the testator’s estate by law when death occurs. This process is governed by the probate procedure. The probate procedure is the procedure which defines the estate including the testator’s movable and immovable property, the rights and claims of the testator and the obligations and liabilities incumbent on him. Once the estate has been defined, the heirs will be determined, i.e. the heirs at law and heirs benefited in the testament, or both, depending on the content of the testament. Once the heirs have been determined, the testator’s assets will be transferred to such heirs. The transfer will be made by means of a probate order issued by a notary public who has exclusive competence to administer the probate procedure, however, it is not the notary public who will physically transfer the assets to the heirs. The proceeding notary public will therefore transfer the assets by deed in favor of the heir as determined in the course of the probate proceedings.
1. The course of the probate procedure – the first steps
The probate procedure starts when the municipal notary is informed of the death of the testator. Once the death of the deceased has occurred, it is advisable to contact the local authority’s probate department and let them know who is responsible for the funeral and took care recently of the deceased. These persons are typically the heirs (children, siblings or heirs named in the testament, if the heir is aware of that).
After “checking in” with the municipality clerk (administrator), the administrator performs the estate inventory. (Preparing inventory is not always mandatory). Estate inventory means that the notary (municipal administrator) must be notified on a form of known assets belonging to the testator. Upon receipt of the form filled by the heirs, the inventory will be taken, during which the notary (administrator) assesses and lists the movable property and its value at the last known residence of the testator, i.e. the administrator visits the testator’s place of residence and takes an inventory of the testator’s movable property. Already at this point, a dispute may arise as to which movable property belonged to the testator and what its value was. In the event of such a dispute, the property in question is entered in the inventory, and then a claim for the property can be filed in the next stage of the probate procedure, in the proceedings before a notary public.
If there is real estate in the estate, the notary (municipality) prepares a tax and value certificate for the property, and the inventory of the property is carried out at the value stated therein. The contents of the tax and value certificate are subject to appeal, so – among other things – the assessed value of the property can be disputed.
If someone knows that there is a will left after the testator, it is also recommended to indicate this already during the procedure of taking the inventory. This can be made on the form to be filled in. Of course, if we become aware that there is a will after the inventory has been taken and prepared, it can also be reported to the notary public before or during the probate hearing. The first stage before the notary (municipality) is completed with the preparation of inventory and sending it to the competent notary public.
2. Probate hearing
The probate hearing is conducted by a notary public. After completing the preparatory steps for the probate hearing, the notary public summons the legal heirs, the creditor (if any) of the estate and the claimant who has acted in the probate proceedings, among others, to the probate hearing. In the case of a will, the heir named in the will, the legal heir entitled to the reserved share of the testator’s estate, the creditor of the estate and other persons will be summoned to the probate hearing.
3. Probate hearing in case when a testament was made
The probate procedure might be often simpler when a testament was made than a procedure without a testament since the testament usually, but not exclusively designates a narrow circle of the heirs.
At the probate hearing, the notary public first takes into account, whether those summoned have appeared. After that, the estate inventory is presented. After the inventory is presented, the testament will be presented. Comments can be made on both the inventory and the testament. Comments are statements that may require the assistance of a lawyer, since whether we have a claim in rem (e.g. property) or a pecuniary claim (e.g. a claim due to an unpaid debt), it can be formulated most accurately only by a lawyer.
The notary public takes a position on the formal conformity of the will. By doing so, the notary public examines whether the given will does comply with the formal requirements of Act (i.e. Act V of 2013 on the Civil Code) (see a more detailed description of these formalities below) or not. If the notary public considers the will to be formally appropriate, the notary public will hand over the estate on the basis of the will. If the notary public has formal concerns about the will, i.e. considers it (fully or partly invalid) the notary public will transfer the estate provisionally to other testamentary heir or to the legal heir. Even in the event of obvious invalidity of content, the notary public proceeds in the same way.
The legal provision that comments may be made on the will gives those interested in the succession the opportunity to express their position that they consider the will to be invalid for any reason. Of course, this is possible even if the notary public did not detect any formal or obvious reason for content invalidity (because he could not detect any). For example, if the testator was incapacitated at the time the will was made, the notary public will not be able to establish this on the basis of a formally correct will. This will be relied upon by the person interested in the succession who knows that the testator was incapacitated. The one can invoke a will to challenge who would inherit himself or be released from an obligation if the will were invalid.
4. Contesting a will
Challenging wills in Hungary is subject to several conditions and strict regulations. Below I summarize the most important rules under which a will can be challenged. However, it is very important that you consult a lawyer who is particularly knowledgeable in this field and can provide professional assistance in each individual case. This will free you from a lot of annoyances that are likely to arise later. Opposition to a will can be invoked by someone who would inherit or be released from obligation if the will were invalid, i.e. anyone cannot plead the invalidity of the will.
The following circumstances may give rise to a successful challenge to a will, if proven:
4.1. Contesting a will due to formal defects in the form
The will must comply with the formal and substantive requirements set out in the Civil Code. Some examples of formal requirements:
a) In the case of a handwritten will, the entire document must be written in the testator’s own handwriting and signed by the testator at the end (this seems to be a simple requirement, but when you consider that an older person may not be able to write longer texts, you may wonder whether, the will was really written personally by the testator);
b) In the case of a handwritten will, the entire document must be written in the testator’s own handwriting and signed by the testator at the end (this seems to be a simple requirement, but when you consider that an older person may not be able to write longer texts, you may wonder whether, the will was really written personally by the testator);
c) A will consisting of several sheets must be numbered consecutively;
d) Testamentary witnesses must know the testator at least sufficiently to be able to identify him.
If any of the formal requirements are not met, the testament will be invalid.
4.2. Incapacity
The testator must have legal capacity when writing the will. If the testator could not be credited due to a psychological or mental condition (e.g. dementia, serious mental illness), his legal statement, i.e. in this case his will, will be invalid. Here it is worth drawing attention to the difficulties of proof in this regard, since it is necessary to prove the mental capacity (the lack thereof) of a deceased person at a given time, which is not an easy task at all, and if the proof fails, the testament will not be declared invalid by the court.
4.3. Testator under duress, under threat
If it can be shown that the testator was coerced or threatened by someone when the will was written, the court may declare it invalid. Here again, reference must be made to the difficulties of proof: a physical (or psychological) circumstance exercised by a person who is no longer alive, affecting the will (paralyzing), and exercised by another person. Needless to say that proving this is an extremely difficult task.
4.4. False wills
A false will can be considered if some formal requirement thereof was later “replaced” without the testator’s knowledge, e.g. a sentence was added to the will, or perhaps it was not signed by the testator and instead signed by someone else – typically, the one who would inherit – or signed by only one witness, and the signature of the other witness is later written on it. In these cases, the will may be considered forged because a formality was originally missing and was subsequently placed on the document. Forgery of wills naturally also has criminal consequences (forgery of private documents, and forgery of public documents in case of use).
4.5. Invalidity based on other substantive grounds
Although freedom of will is extensive, there are some terms of the will that are considered invalid by law. For example, a testamentary disposition cannot be made that is contrary to good morality. The stipulation of an impossible or contradictory testamentary term is also invalid. What is against good morality, or when a condition becomes contradictory, can always be determined on a case-by-case basis in the light of the given circumstances.
4.6. Disinheritance
Disinheritance is very common and countless court decisions deal with disinheritance. Stipulation on disinheritance is admissible if the disinherited person was unworthy of succession, or sought the life of the testator, or led an immoral lifestyle. If the heir is subject to disinheritance, the heir cannot claim the compulsory (minimum) portion of the inheritance. In many cases, disinheritance is “used” by testators to completely deprive one of their legal heirs of the opportunity to benefit from their estate in the absence of a true reason for disinheritance. Disinheritance must be justified, and the person deprived of inheriting by the means of disinheritance is, of course, entitled to challenge the will and prove that there was no reason for the disinheritance or the reason stipulated in the will was not true.
5. Contesting a will, deadline and civil litigation
A will can be contested only in court, which means that a civil action must be filed with the competent civil court. It is important, therefore, that invoking the invalidity (or only partial invalidity) of a will, either in the notarial proceeding or indicating it to the heir, is neither sufficient nor suitable for challenging the will. The challenge of the will can be made lawfully and effectively only in front of the competent civil court. The deadline for contesting a will is five years from the opening of the succession.
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As you can see, both the preparation of a will and the legal evaluation and analysis of an existing will are complex legal tasks, for which you are advised to engage an expert lawyer. Even if probate procedure seems to be simple in the case of a will, legal advice might be needed. In case a testament is being challenged, accurate, detailed and careful legal advice is practically unavoidable, as the proper processing and evaluation of judicial practice can only be known through precise lawyer assistance.
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The content of this blog post does not constitute legal advice and only provide general and partial information both in connection with the probate proceedings, the form and content requirements related to wills and the rules for challenging wills.
