When witnesses are required for the attestation of a will and who cannot be witnesses

A will is a personal disposition of a person regarding the fate of his property after death. At the same time, the law establishes clear requirements for the form and procedure for its certification. Violation of the procedure can lead to lengthy legal disputes between heirs and even become grounds for declaring the will invalid.

One of the guarantees of the true expression of the testator’s will is the participation of witnesses. However, their presence is not required in all cases.

What requirements are established for a will

According to Article 1233 of the Civil Code of Ukraine, a will is a personal disposition of an individual in the event of death.

A will cannot be made through a representative. The document must reflect the personal and free will of the testator.

According to Article 1247 of the Civil Code of Ukraine, a will must be:

made in writing;
drawn up with an indication of the place and time of its making;
personally signed by the testator;
certified by a notary or other person authorized by law.

During certification, the notary establishes the identity of the testator, checks his civil capacity and explains the legal consequences of drawing up the document.

Who can certify a will instead of a notary

In certain circumstances, a person does not have the opportunity to contact a notary. Then other officials or service persons defined by Article 1252 of the Civil Code of Ukraine may certify the will.

In particular, these may be:

the chief physician, his deputy from the medical unit or the doctor on duty of a hospital or infirmary;
the director or chief physician of a home for the elderly and disabled;
the captain of a sea or river vessel;
the head of an expedition;
the commander of a military unit;
the head of a penal institution or a remand prison.

Such powers are applied only in special circumstances when contacting a notary is impossible or significantly complicated.

When witnesses are required

In most cases, a notary can certify a will without the presence of third parties. At the same time, Article 1253 of the Civil Code of Ukraine provides for two situations where the participation of at least two witnesses is mandatory.

The testator cannot read the document on his own

If, due to physical condition or health, a person cannot personally read the text of the will, at least two witnesses must be present during its certification.

They must confirm that the contents of the document were brought to the attention of the testator and correspond to his true will.

The will is not certified by a notary

Witnesses are also necessarily involved if the will is certified by an official or official person provided for in Article 1252 of the Civil Code of Ukraine.

Such a requirement should reduce the risks of pressure on the testator, forgery of the document, or doubts about the voluntariness of his will.

Who can be a witness

A witness can be an individual with full civil capacity who understands the meaning of his actions and is able to confirm the circumstances of the will.

At the same time, the law prohibits the following from being witnesses:

a notary or other person who certifies the will;

heirs specified in the document;

family members and close relatives of such heirs;

persons who cannot read or sign the document in person.

Such restrictions are designed to guarantee the impartiality of witnesses and avoid conflicts of interest.

The participation of an improper witness does not always automatically mean that the will is invalid. The court will assess whether the violation was significant and whether it could have affected the true expression of the testator’s will.

What witnesses must do

The role of witnesses is not limited to their physical presence. According to Article 1253 of the Civil Code of Ukraine, they must:

read the text of the will aloud;
put their own signatures on the document.

The will also indicates information about each witness:

surname, first name and patronymic;
date of birth;
place of residence;
details of the passport or other identity document.

This allows, in the event of a dispute, to identify the participants in the procedure and question them in court.

Witnesses are obliged to keep the will secret

According to Article 1255 of the Civil Code of Ukraine, witnesses, a notary, another person certifying the will, as well as a person signing it instead of the testator, do not have the right to disclose, before the opening of the inheritance:

the fact of making the will;
its content;
amendments to the document;
the fact of its cancellation.

The secrecy of a will protects a person from possible psychological or property pressure from potential heirs.

Separate rules apply to a secret will. After the death of the testator, the notary announces its contents in the presence of interested persons and two witnesses and draws up an appropriate protocol.

When a will can be challenged

Failure to comply with certain formal requirements does not always automatically lead to the will being declared invalid. In inheritance disputes, the courts first of all determine whether the testator’s will was free and whether it corresponded to his true will.

If a violation of the procedure does not allow the person’s will to be reliably established or calls into question the legality of the document’s certification, the will may be declared invalid in accordance with Article 1257 of the Civil Code of Ukraine.

At the same time, minor technical errors that did not affect the content of the document and the freedom of will