Testamentary refusal: what is it, what can be the subject of the document, whether the heir executes it, whether the use of the residential premises is real, and also for how long the right to receive it is valid

Concept and form of a will

A will means a personal disposition of a person in the event of his death regarding his property and property rights, drawn up in accordance with the rules established by law. Only it allows a citizen to dispose of property in the event of death.

A will can also be defined as a one-sided legal transaction, the rights and obligations under the terms of which arise only after the opening of the inheritance.

These rights and obligations may depend, in particular, on the will of the testator, who has drawn up not a standard will, but a will with a condition.

Only the written form of a document certified legally is recognized, regardless of the means by which the recording was made.

There is one exception to this rule regarding the need to have a will certified: extraordinary circumstances, in particular those threatening the life of a person, give him the opportunity to record his last will in simple written form. The condition for recognizing the validity of a will in this case is that:

Two witnesses are present when it is written and signed.
The contents of the document leave no doubt that this is indeed a will.

How is a will with a condition drawn up?

The basic rules for making a will are:

Full legal capacity of the testator.
Making a will in person (not through intermediaries).
To the question whether it is permissible for two or more citizens to make a will, the answer is clearly negative.

General design rules:

The testator either writes the text of the will himself, or a notary does it from his words, including using technical means of printing. In the second case, before signing the text, the testator must read it completely. If this is not possible, then the notary reads out the document, and an inscription is made on it about the reasons for the testator’s impossibility of reading it.
Signing is possible in two versions: the main one is the personal signature of the testator, the backup one is the signature, at his request, of another citizen in the presence of a notary. The basis for the second case is the impossibility of the testator personally signing the document due to a serious illness, physical disability or lack of literacy. These reasons should be stated in the text. A document proving the identity of the signer is required, containing his full name and place of residence (this information is also included in the text of the will).
The same data, based on the same document, is entered into the will of the person who is invited to participate in the notarial act as a witness. The witness also puts his signature on the document.
An obligatory stage of the procedure is a warning (done by a notary) to the witness and/or citizen signing the will instead of the testator about the secrecy of the contents of the will (including changes made, execution itself and cancellation), which should not be disclosed until the opening of the inheritance.
Another necessary action is for the notary to explain to the testator the right to an obligatory share in the inheritance left behind and confirm this action with an inscription on the will.

The specifics of drawing up a will with conditions relate to the contents of the document itself.

You can learn about other nuances from the material “The Concept and Form of a Will.”

Legal and illegal conditions

Firstly, wills themselves with conditions are provided for by civil law and are therefore legal.

Secondly, the conditions written in the will are considered unlawful if they contradict the constitutional freedoms and rights of citizens. These include the following conditions:

on the obligation of a certain place of residence;
about participation (non-participation) in religious activities;
on the choice of area for professional activity;
about marriage (refusal thereto) with a certain person.

Thirdly, even a condition that does not contradict legislative norms may turn out to be unenforceable due to objective circumstances, that is, become unlawful on possible factual grounds.

The legality of the conditions included in the will can be challenged in court. The court also has the right to establish the fact that there are no objective grounds for fulfilling the testamentary provisions.

Lifetime residence

The condition of lifelong residence is completely legal. Its meaning boils down to the fact that the heir is charged with the obligation to provide a third party (not necessarily a relative) with the right to live in a house (apartment) or other premises that are part of the inheritance mass.

The period of residence may not necessarily be lifelong, but limited to a certain period.

Legality of maintenance as a condition of a will

It is legally determined that a legal condition is the assignment of responsibilities to the heir(s) for the maintenance of pets that belong to the testator. Moreover, the maintenance may be supplemented by the duty of supervision and care.

With regard to people, a condition requiring the heir(s) to provide maintenance to a third party (including lifelong maintenance) should not, according to lawyers, be recognized as legitimate, since it transforms a will from a one-sided transaction into a bilateral transaction of a compensatory nature.

Basic information contained in a will

A document not duly certified cannot be considered a valid will, in which:

the property and/or property rights that are bequeathed to the heirs are not indicated;
the persons whom the testator identified as heirs are not indicated;
the place and date of its certification are not indicated (with the exception of a closed will, when the place and date of its adoption are indicated on the envelope of documents).

Mandatory information is also:

Full name and place of practice of the notary;
Full name and place of residence of the testator;
signature of the testator (or the person replacing him).

It is clear that they must be spelled out in the will with the conditions.

The difference between a testamentary refusal and a testamentary assignment

The orders mentioned by the testator in the will may be included in a special list. The will of the testator can be expressed in the form of: sub-appointment of an heir (in accordance with Article 1121 of the Civil Code of the Russian Federation); testamentary refusal (according to Article 1137 of the Civil Code of the Russian Federation); assignments (mentioned in Article 1139 of the Civil Code of the Russian Federation); appointment of the person executing the will - the executor (indicated by Article 1134 of the Civil Code of the Russian Federation).

We recommend reading: Receipt between legal entities

Cost of registration of a will

Prices for notary services vary greatly in the regions of the Russian Federation. The standard components of the cost of registering a will are:

Preliminary consultation (national average from 500 to 1,000 rubles).
Drawing up the text of a will or checking the one that the testator personally prepared (approximately 1 thousand rubles per page).
Certification of the document (from 100 to 1000 rubles).

To find the most suitable option, study detailed information about how much it costs to draw up a will with a notary.

Comparison of types of conditions in a will

The conditions included in the will are reduced to two forms established by law, these are:

Testamentary refusal.
Testamentary assignment.

The differences are visible from the analysis of their features.

Testamentary refusal

The word “refusal” in everyday life is used in a negative, negative sense - not giving something to someone.

In inheritance law, refusal means the case when the heir in the will is given an instruction to refuse (transfer) to a third party (legatee) certain property or property rights.

The named things must be transferred at the expense of the inheritance left, otherwise the testamentary refusal is considered illegal.

Here is an incomplete list of what may be provided for by a will:

Some of the things are from the hereditary mass.
Property acquired through inheritance.
Specific work or service in favor of the legatee.
Payments, including regular ones, from inherited funds.

Execution of a lawful testamentary refusal is mandatory.

Find out more about the situations that arise in this case from law enforcement practice from the publication “Can a testator deprive heirs of the right to inherit.”

Testamentary assignment

What is common to a testamentary refusal and a testamentary assignment is that both of these conditions:

How is a will made?

The Civil Code of the Russian Federation establishes that the execution of an assignment of a material nature is carried out according to the same rules as a testamentary refusal. In general it looks like this:

execution is entrusted to one of the heirs or to the executor (executor of the will);
if the assignment order concerns not one, but several heirs, it can be executed in proportion to their shares in the inheritance. However, the testator has the right in the will to change the nature of the execution of his will, personally determining who should execute it and how;
the limits within which a testamentary assignment is executed are determined by the share of property that goes to the heir. Moreover, if the heir has the right to claim an obligatory share, it is deducted from that part of the inheritance that goes for testamentary refusal or assignment;
if the heir died before receiving the right to inheritance, the obligation to fulfill the assignment passes to the other heirs.

All this also applies in the case where a testamentary refusal is provided. However, there are features that relate only to laying on:

performance of actions provided for by the assignment may be required by any of the heirs, the executor and any of the interested parties;
the assignment may concern the heir both by will and by law (if the contents of the will concern not all property, but only part of it);
the time limit for the assignment to be fulfilled is not limited by law;
the claim may be brought to court if the contents of the will do not indicate otherwise.

In order for the testator to order the assignment, he must draw up a will.

Moreover, if the assignment concerns property obligations aimed at goals beneficial to everyone, the will can only contain conditions for the assignment.