A testament is an unilateral, personal and always revocable statement of the will of a competent person by which he distributes his property in case of death, in a form determined by law.
Bequest, conditions of bequest, as well as its form and forms are regulated by the provisions of the Law on Inheritance of the Republic of Serbia.
A will can be made by a person who has reached fifteen years of age and is capable of reasoning. If the person who made the will loses the ability to reason after the bequest was made, this circumstance will not apply affect its validity. Exceptionally, when the circumstances that were the testator’s decisive motive at the time of the bequest have changed significantly, the court may, at the request of an interested person, invalidate certain provisions of the bequest or the entire bequest if the testator could not do so due to loss of judgment. Such a request can be made by an interested person within three years from the date of promulgation of the bequest.
The testator’s will to make a will must be serious, real and free , while his intention to make a will, it must be definite and unconditional. The bequest must be made in the form and under the conditions specified by law.
The Inheritance Law of the Republic of Serbia recognizes several forms of testament. Regardless of which form of testament the testator chooses, it is extremely important that the form of the will be fully respected in accordance with the provisions of the law. If certain omissions are made in the form of a testament during the drafting of the will, the court will not be able to declare the will and recognize its legal validity, regardless of the fact that it was the last statement of the testator’s will. Also, other legal heirs can try to dispute the will before the competent court, and for the reason mentioned, it is necessary to pay special attention to the form of the will, so that one day after the testator’s death, such a will was “irrevocable”. It is recommended that the drafting of the will be entrusted to a lawyer or other professional person in order to minimize the mistakes that may occur during the drafting of the will.
Types of forms of bequest that are provided for in the provisions of the Law on Inheritance of the Republic of Serbia:
1) Handwritten testament
A testator who knows how to read and write can make a will by writing and signing it with his own hand. For the validity of a handwritten will, it is not necessary to indicate the date when it was made, but it is desirable.
This was the primary form of bequest in previous decades. The specificity of this form of bequest lies in the fact that it had to be made by the “hand” of the testator. Therefore, if someone else made this will according to the testator, or if the will itself was typed on a typewriter or computer, the validity of the form of the will would be called into question.
2) Written testament before witnesses
A testator who knows how to read and write can make a will by declaring in front of the two witnesses that he has already read the written will, that it is his last will, and then signing the letter with his own hand.
Testamentary witnesses in the case of a written testament in front of witnesses cannot be persons to whom something is bequeathed. Provisions of a written testament in front of witnesses, in which some property is left to the testamentary witnesses, will be considered absolutely null and void.
Witnesses sign the will at the same time, and it is preferable to indicate their status as witnesses.
3) Judicial probate
A judicial will is draft according to the rules that apply to the drawing up of documents, unless otherwise specified by this law. A judge can make a will at the request of the testator, after having previously established the testator’s identity. After the testator reads and signs such a will, the judge at the will itself confirms that the testator has read and signed it in his presence.
When the testator is unable to read the will made for him by the judge, the latter reads it to the testator in the presence of two witnesses, and then the testator declares in the presence of the same witnesses that it is his will and then signs the will or puts his signature on it. The witnesses sign the will at the same time. The judge is obliged to confirm at the will itself that all these actions have been done.
When the will is made in a court where the testator does not have a residence, the court is obliged to immediately inform the court where the testator has a residence. The testator can entrust a handwritten will, a written will in front of witnesses and a judicial will to the competent court for safekeeping in an open or closed envelope. The court will make a record of the receipt of the will and place the will in a separate envelope that will be sealed and kept in the court.
4) Consular testament
A consular representative or a diplomatic representative who performs consular duties may make a will to the testator abroad, according to the rules that apply to making up a judicial will.
5) International testament
An international will is valid regardless of the place where it was made and where the testator’s goods are located, regardless of the nationality of the testator, his place of residence or residence, if it was made in the form of an international will. The nullity of an international bequest does not affect its validity as a bequest of another kind. An international will must be made in writing, but the testator does not have to write it by hand. An international will can be made in any language, by hand or in any other way.
In the presence of two witnesses and a person authorized to draft up an international will, the testator declares that his will was made in writing and that he is familiar with its contents. The testator is not obliged to introduce the content of the international will to the witnesses, nor to the authorized person. In the presence of witnesses and an authorized person, the testator signs the will or, if he has previously signed it, acknowledges and confirms the signature for his own.
If the testator is unable to sign, he communicates the reason to the authorized person, who records it on the will. The testator can request that another person, on his behalf, sign the will, and the authorized person will record it on the will. Witnesses and an authorized person in the presence of the testator put their signatures on the will at the same time. Signatures must be placed at the end of the will. When the will consists of several sheets, the testator must sign each sheet or, if he is unable to sign, the will can be signed by another on his behalf, or an authorized person. Each will must be marked with a number.
The date of making an international will is the date on which it was signed by an authorized person. The authorized person puts that date at the end of the will. The authorized person shall attach to the international will a certificate, on the form prescribed by the relevant international convention.
An international bequest can be revoked in the same way as other forms of bequest, according to this law.
6) Ship legacy
The testator can make a will on the domestic ship by the ship’s commander, according to the rules that apply to the drafting of judicial wills.
A bequest made in this way ceases to be valid after thirty days from the day of the testator’s return to the Republic of Serbia .
7) Military legacy
During mobilization or war, a will to someone who is on military duty can be made by the company commander and another senior officer of his or a higher rank, or someone else in the presence of one of those senior officers, as well as any senior officer of a separate detachment, and according to the rules that apply to the preparation of a judicial will bequests.
A bequest made in this way ceases to be valid after sixty days from the end of the war, and if the testator was demobilized earlier or later – after thirty days from the day of demobilization.
8) Verball testament
The testator can express his last will verbally in front of three witnesses present at the same time, if he cannot make a written will due to exceptional circumstances. The verbally bequest ceases to be valid after thirty days from the end of the circumstances in which it was made.
The witnesses in front of whom the testator expressed his last will verbally are obliged to make the testator’s statement in writing without delay and submit it to the court as soon as possible, or to repeat it verbally in front of the court stating when, where and on what occasions the testator expressed his last will . The performance of that duty is not a condition for the validity of an verball bequest.
9) Notarial will
A notarial will is drawn up by a notary public in the form of a notarial record. Testamentary witnesses must be literate, of legal age and fully capable of doing business, except for verball testaments, when witnesses do not have to be literate.
Witnesses of international and written wills in front of witnesses must also know the language in which the testator declares that the will is his, and witnesses of verball and judicial wills must also know the language in which the will was made.
A testamentary witness cannot be a person who is a direct blood relative of the testator, collateral relative up to the fourth degree of kinship, in-law relative up to the second degree of kinship, relative by adoption, spouse, ex-spouse, common-law partner, former common-law partner, guardian, former guardian, ward or former ward. This does not apply to verball bequests.
Content of the testament
A will can appoint one or more heirs. An heir based on a will is the one to whom the testator left the entire property or a part of that property determined according to its entirety. An heir is also considered to be the one to whom one or more certain things or rights were left by will, if the testator wanted that person to be the heir.
Heirs, legatees and others to whom benefits are left must be determined or determinable. They are determinable if the will contains information on the basis of which it is possible to determine who they are.
A will can determine who will receive the inheritance if the designated heir cannot or will not inherit. The testator can order that any thing or right, part of the property or all of the property be used for permitted purposes. The testator can order the establishment of an endowment and determine the means to achieve its goal. The testator can set conditions and deadlines in certain provisions of the bequest.
When the testator appoints one heir and does not determine his inheritance share, he inherits the entire legacy. When the testator appoints one heir and determines his inheritance share (half, third, etc.), the rest is inherited by the legal heirs. When the testator appoints several heirs and does not determine their inheritance shares, they inherit in equal shares.