can a will be challenged

[Anonymous]

My uncle's son died and after him remained a 2-bedroom apartment. The son bequeathed this apartment to his ex-wife, whom he divorced 5 years ago, and bought the apartment 2 years ago. My uncle is a disabled person of group 1, lives in his privatized 1-room apartment alone, he is seriously ill and needs a lot of money for treatment. My son’s ex-wife has her own 3-room apartment, she lives there with her adult son from her first marriage (my uncle’s son is her second husband). My son bought an apartment after a divorce. Can an uncle through a court cancel a will of his son?

 

[Бедеров Игорь Сергеевич]

The heirs of the first stage under the law are the children, spouse and parents of the testator. The ex-spouse is not on this list. However, she has a will drawn up personally for her and, therefore, must inherit the property in full. In the cases provided for in paragraph 1 of Art. 1149 of the Civil Code of the Russian Federation, minor or disabled children of the testator, his disabled spouse and parents , as well as disabled dependents of the testator, subject to call to inherit on the basis of paragraphs 1 and 2 of Article 1148 of this CC The Russian Federation, inherit, regardless of the contents of the will, at least half of the share , which would be due to each of them when inheriting according to the law (mandatory share). The right to an obligatory share in the inheritance is satisfied from the remaining unvisited part of the inheritance property, even if this leads to a decrease in the rights of other heirs under the law to this part of the property, and if there is insufficient unannounced part of property for exercising the right to an obligatory share - from that part of property that has bequeathed . Simply put. If, according to the law, only one disabled father is the sole heir, then in spite of the will, he will receive all the property that has not been promised and, if not enough, up to half of the property, will be part of the bequeathed apartment.

 

[Адвокат]

In accordance with the provisions of paragraph 1 of Article 1149 of the Civil Code of the Russian Federation, minor or disabled children of the testator, his disabled spouse and parents, as well as disabled dependents of the testator, inherit, regardless of the contents of the will, at least half of the share that would be due to each of them if inherited by law (required share). The concept of disability and dependency in the Civil Code does not. However, the Federal Law “On Labor Pensions in the Russian Federation” dated December 17, 2001 No. 173 – ФЗ defines the conditions under which a retirement pension is prescribed (Art. 7), disability (Art. 8) and survivor’s (Art. 9), and also states that the labor pension is paid in connection with the onset of disability due to old age or disability, and to disabled family members in connection with the death of the breadwinner (Part 1 of Art. 2). It follows from the meaning of these provisions of the Law that the following are considered to be disabled:  - men who have reached the age of 60 years, and women who have reached the age of 55 years;  - citizens recognized by the bodies of the state medical and social examination as disabled if there is a restriction on labor activity of I, II or III degree (previously disabled persons of I, II or III group);  - persons under the age of 18 (minors). Thus, your uncle is entitled to a mandatory share of the inheritance. If besides him there are no first-order heirs under the law (children, spouse and mother) of the testator, then your uncle has the right to ½ share of the inheritance, regardless of the fact that it was bequeathed to another person. At the same time, your uncle has the right not only to ½ of the apartment, but also to ½ of all the property that belonged to the testator at the time of death. Considering that your uncle lives in his apartment, and therefore does not use the apartment owned by his son, your uncle needs to contact the notary in charge of inheritance affairs with a statement on the issue of a certificate of inheritance. Based on the documents submitted to the notary by the heirs about the availability and value of the property included in the estate, the shares due to the heirs will be calculated. If any of the heirs disagrees with the calculation, then the dispute will have to be resolved in court.

 

[Матушкин Андрей Николаевич]

Thank!