In times of crisis, wills take on a special significance, becoming not only a document for the disposal of property, but also an important tool for ensuring peace and order in the most unstable situations. In times of conflict, when the environment is uncertain, a properly drafted will can protect the rights of heirs, preserve family well-being, and make important directives regarding property and personal matters.
A will is an individual’s personal order in the event of his or her death. A person with full civil capacity has the right to make a will. The principle of freedom of will applies. It means that a testator has the right to bequeath his or her property to any person. Moreover, documentary evidence of the availability of this property or the consent of the person for whom the will is being certified is not required at all. All a person needs to do is come to a notary, express their wishes, sign the text of the will, and the notary will certify it.
Even if there is no notary nearby, the head of a hospital, the head of a prison, the captain of a ship, or the head of a village council can certify a will. You can also make a will abroad and have it notarized at a Ukrainian consulate. The main thing is that the person who certified the will should do everything to register it in the electronic inheritance register.
When a person dies, any of his or her property can be inherited by law, or anyone can inherit by will.
Wills at the front
In March 2022, the U.S. State Department advised all Americans who decide to travel to Ukraine to make a will before they go, to submit DNA samples and express their wishes for burial. In Ukraine, it is not even known whether everyone who has been mobilized to the front receives such advice, the Yurydychna Sotnia NGO tells BBC Ukraine. Although various bodies, such as the Coordination Headquarters for the Treatment of Prisoners of War, publish such explanations from time to time.
“In addition to the will, we advise you to leave copies of the most important documents, a power of attorney, and information about the place of service – the number of the military unit, contacts of commanders and comrades-in-arms,” says Olga Marko, lawyer at the Legal Hundred NGO. Such actions will help both the soldier and his family – especially in cases of disappearance, captivity or death of a soldier.
The Legal Hundred, which has been providing legal aid to the military since 2014, says that there are usually few questions about wills. The organization also has no information on whether wills are made at the front and whether this practice is widespread. Starting in August 2022, military personnel’s wills can be certified directly by unit commanders. “First of all, the military will deal with issues directly related to service, not with the legal intricacies of inheritance,” says lawyer Olha Marko.
How is a will drawn up and certified under martial law?
Individuals with full civil capacity have the right to make a will. The law does not allow making a will through a representative. A will may be made in writing and certified by a notary or, in rural areas, by an authorized official of a local government body. However, it is worth noting that the content of a will may be amended or revoked by the testator at any time. When notarizing a will, a notary is obliged to explain to the testator the content of Article 1241 of the Civil Code of Ukraine on the right to a compulsory share in the inheritance and the content of Article 1307 of the Civil Code of Ukraine on the nullity of a will to property that is the subject of an inheritance contract.
Wills drawn up and certified, amended or canceled in accordance with the procedure established by law are subject to mandatory registration in the Inheritance Register. During martial law or a state of emergency, in the absence of access to the Inheritance Register, notarization of a will, amendments thereto and its revocation are carried out without using this register, with the subsequent entry of relevant information into it within five business days from the date of restoration of such access.
Who certifies a will?
During martial law, wills are certified according to the usual procedure and can be certified by
- notaries;
- chief physicians, their deputies in the medical department or duty physicians of hospitals, hospitals, other inpatient health care facilities, as well as heads of hospitals, directors or chief physicians of homes for the elderly and persons with disabilities, certify the wills of persons undergoing treatment in a hospital, hospital, other inpatient health care facility, as well as persons living in homes for the elderly and persons with disabilities;
- masters of sea and river vessels flying the flag of Ukraine certify the wills of persons who are on board such vessels;
- heads of search or other expeditions certify the wills of persons who are on these expeditions;
- commanders (chiefs) of military units, formations, institutions, military educational institutions certify the wills of servicemen, and in the places of deployment of military units, formations, institutions, military educational institutions where there are no notaries or officials of local self-government bodies performing notarial acts, they also certify the wills of employees, members of their families and family members of servicemen;
- heads of penitentiary institutions certify the wills of persons held in such institutions;
- heads of pre-trial detention centers certify the wills of persons held in pre-trial detention centers.
Is it possible to accept an inheritance while outside Ukraine?
If an inheritance to which a person who has moved abroad is entitled has been discovered on the territory of Ukraine, such a person may apply to the embassy/consulate of Ukraine in the country of his/her stay and certify his/her signature on the application for acceptance of the inheritance.
If a citizen’s death was registered in another state, the notary shall be provided with a relevant document issued by the competent authorities of the foreign state, which is valid in Ukraine subject to its legalization, unless otherwise provided by law or international treaties of Ukraine. It is also possible to notarize an application for inheritance with a notary of a foreign country with subsequent apostille affixed to such a document.
An apostille is affixed to official documents used in the territory of the countries that have signed the Convention abolishing the requirement to legalize foreign public documents (the Hague Convention) of 05.10.1961. Further, such an application may be sent by post to a notary in Ukraine, which will result in the opening of an inheritance case in the general procedure.
When is the certificate of inheritance issued?
The certificate of inheritance is issued to the heirs after the expiration of the period for acceptance of the inheritance. When issuing a certificate of inheritance by law, the fact of the testator’s death, the time and place of opening the inheritance, the existence of grounds for calling for inheritance by law of the persons who applied for the certificate, and the composition of the inherited property are verified. Inheritance is an important legal process, so it is necessary to exercise the rights and obligations as an heir as defined by the applicable law.
War conditions make wills not only a legal document, but also a moral obligation to loved ones. They are an important tool for ensuring peace and order in the most difficult times, allowing people to dispose of their property and regulate personal matters in accordance with their beliefs and values. Despite the difficulties associated with drafting wills in times of war, it is important to follow procedures and consult with lawyers to ensure that they are clear and executed as instructed. Those who carefully prepare for unforeseen circumstances leave their heirs not only property but also peace of mind in difficult times.
