Making a Will and Inheritance: What Should Be Known?

Authors: Mykolas Jakutis, Lawyer, Assistant Attorney-at-Law at METIDA, Vilius Martišius, Associated Partner, Attorney-at-Law at METIDA, Court mediator

8775396086_095db32dd4According to the laws in force in Lithuania, successors of the testator may inherit property pursuant to a will or by operation of law. Succession by operation of law is the devolution of property rights and some other personal non-property rights and duties of a deceased natural person to their heirs by operation of law. Meanwhile, the will is a transaction which on the death of the person that executes it (hereinafter referred to as the Testator) grants the indicated persons the respective rights or deprives them of the respective rights.

Below we will briefly discuss the main principles of the law of succession pursuant to a will.

The will is often defined as an official document whereby the person determines the person to whom his/her accumulated property will belong on his/her death. Nevertheless, such definition is not entirely accurate, since the person in his/her will also may specify the person that cannot inherit his/her property. To be more precise, the will could be defined as follows: the will is a personal, unilateral, written transaction voluntarily entered into by the natural person with legal capacity whereby the testator determines inheritance of the property belonging to him/her and the legal consequences of which arise upon his/her death.

In all cases, in Lithuania the will must be executed in a written form irrespective of the type of the will. Although oral form of the will exists in other countries, such form of the will is not provided for in the laws of our country.

The Civil Code of the Republic of Lithuania (hereinafter referred to as the CC) sets out the following four types of the will:

1. official will;

2. will equal to official will;

3. private will;

4. joint will of spouses.

Only the will attested by a notary public or a consular official of Lithuania are recognised as the official will. In all cases, prior to attesting the will the notary public must identify the testator, verify his/her capacity and condition. The contents of the will are dictated to the notary public by the testator. He/she may put down the text in advance, read it or simply provide it to the notary public. The notary public should not attest the wills drawn up by other persons. In one case where the notary public attested the will drawn up by the successor the Supreme Court of Lithuania has stated that “advance formulation of the text of the will by the future testate successor is contrary to the principles of good faith and are to certain extent associated with the lack of free will of the testator. Therefore, the will in dispute was not an act of personal will which is incompatible with the concept of the will per se”. The put down will is read out, the contents and consequences thereof are explained to the testator, then the testator signs the will. Later on, the will is attested and registered in the Notary’s Register. In such case, two copies of the will are drawn up. One of them is given to the testator, the other copy remains in the office that attested the will.

The wills equal to official wills are the wills attested by the persons referred to in the law, since as of the moment of depositing the will for safekeeping it acquires the same legal force as the wills attested by the notary public, i.e. official wills. The form of such wills, the procedure for making such wills are subject to the same requirements as the official wills. Pursuant to the Civil Code, the right to attest the afore-mentioned wills is vested to the following persons:

1. chief doctors, their deputies for medical matters or doctors on duty of  hospitals, health care establishments and sanatoriums as well as the directors or chief doctors of  homes for retired or disabled people;

2. captains of the ships sailing under the flag of the Republic of Lithuania;

3. heads of exploratory, research, sports or any other expeditions;

4. commanders of military units, formations or institutions and military schools;

5. heads of places of confinement;

6. neighbourhood executive managers of the place of residence.

The afore-mentioned persons may attest only the wills of the persons who, for example, undergo treatment in the health care establishment, sail in seagoing vessels or ships, participate in expedition, are called up for military service in a military unit, are inmates of places of confinement etc. Upon attesting such will in accordance with the procedure prescribed by the Minister of Justice, the above persons must transfer it to the notary public of his/her location as soon as possible. When accepting a will deposited for safekeeping the notary public must identify the person depositing the will, verify if the will states the place and time, the name, surname, personal identification number or date of birth, place of birth of the testator, signature of the testator etc.

The concept Personal Will is not entirely accurate, since all wills are personal transactions and that implies that non-personal wills do not exist. The Civil Code provides for that the personal will is a will written up in hand by the testator indicating the first name and surname of the testator, the date and place where the will was made, expressing the true intent of the testator and signed by him. This is the simplest form of the will because such will may be made by any fully legally capable literate person. Such type of wills have certain advantages and disadvantages. One of the advantages is the fact that each focussed person may freely issue instructions in respect of his/her property in the event of his/her death. This is particularly relevant when the person cannot appear at the notary public or call the notary public due to an illness or other circumstances, does not want that his relatives or the persons nursing him/her found out about the will made by him/her. Furthermore, in an informal environment the testator may formulate and express the contents of the will in a more detailed manner.

On the other hand, the personal will may also have negative consequences. Dishonest persons may force the testator to make such will that would be favourable to them through threats, use of physical violence. Besides, the will may be forged, hidden or destroyed and sometimes later on it may be difficult to establish or prove the fact of forgery.

The personal will must be written up in hand by the testator as a solid document by any instrument for writing. Nevertheless, it is to be noted that the will cannot be written up using a typewriter or a computer. If the text is written up using a computer, typewriter or by another person in hand and signed by the testator; such will shall be declared null and void. The will in which a part of the text written in hand of another person is inserted also shall be declared null and void. Such entries of another person show that the will was not written up by the testator independently, that he/she was under the influence. The will must not be necessarily drawn up outright, it may be written for a long time, since it is deemed to be finished when it is signed and dated by the testator.

The testator deposits his/her personal will to a notary public or an official of the Consulate of the Republic of Lithuania in the respective country for safekeeping. It is to be noted that only the testator himself/herself may deposit the will. The will is deposited in a sealed envelope bearing the signature of the testator, notary public or consular official. In case where the personal will is not deposited for a notary public or a consular official, it must be furnished to the court for attestation not later than within one year after the death of the person. In the event of failure to do this, the will becomes null and void because, according to the Civil Code, only the will attested by the court is valid. Attestation of the personal will in court is a legally effective action on the basis of which the party concerned may apply to a notary public for issue of the certificate of the right of inheritance.

The Civil Code provides a possibility to make a joint will of spouses. By their joint will, the spouses appoint each other as the successor and after the death of one of the spouses, the whole property of the deceased (including the part of the common property of the spouses therefrom) shall be inherited by the surviving spouse. Furthermore, they may indicate a successor upon the death of both spouses.

The most prevalent wills are official and personal wills. In summary, it may be pointed out that official wills as compared with personal wills have certain advantages:

1. they are made in the presence of a notary public or a consular official who may provide assistance to the testator in formulating his/her instructions that such instructions were clear and in compliance with the statutory requirements;

2. such wills may be made by illiterate persons or persons who cannot draw up or sign their wills for any reasons;

3. they have the same force as an official document and it is more difficult to contest them.

In pursuance of avoiding disputes over property upon death, in all cases, it is worth making a will. All property or a separate part of property may be bequeathed to one person or several persons. Such persons may include testate successors, relatives or friends. Besides, property may be bequeathed to the state, municipalities, and legal entities for public benefit or charity purposes. The will may specify the close relatives who cannot claim inheritance and it implies the right vested by the will to deprive certain person of the right of inheritance. A duly, thoroughly and accurately drawn up will prevents possible disputes among relatives and litigation in court.

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