+386 2 25 23 780
+386 41 262 575 (emergencies)
Cankarjeva ul. 16, Maribor, SI
info@odvetnik-kutnjak.si
  1. Home
  2. Legal areas
  3. Inheritance law
  4. Will, Testamentary Capacity, Validity, and Revocation of a Will

Will, Testamentary Capacity, Validity, and Revocation of a Will

Advantages and significance of testamentary inheritance: benefits of testamentary inheritance for heirs

The freedom to dispose of one's property upon death, known as testamentary freedom, is not unlimited. However, everyone has the right and the opportunity to determine, at least for a portion of their estate (known as the disposable portion), what should happen to it after their death. This includes designating the beneficiaries of the will, specifying the inheritance shares, disinheriting certain individuals, making bequests, imposing burdens, and more.

While most of us are aware of these freedoms and possibilities, many fail to utilize them, mistakenly believing that it is unnecessary. Although the law provides for intestate or statutory inheritance in such cases, according to the legal rules governing inheritance, this system of inheritance can sometimes seem illogical, impractical, and outdated.

For many heirs, intestate inheritance is often a surprising and ultimately disappointing outcome, especially when it comes to the distribution of assets in the probate process.

Spouses or unmarried partners are not automatically the sole heirs

If the deceased did not make a will, it is not automatic for the surviving spouse to inherit the entire estate. Typically, they will have to share the inheritance with other relatives, whether close or distant, of the deceased.

The same applies to married couples without children. In such cases, the deceased spouse's parents usually inherit along with the surviving spouse. If the parents have already passed away, the deceased's siblings will also inherit along with the spouse.

In cases of intestate inheritance, the surviving spouse becomes the sole heir only if there are no heirs of the I or II order (descendants, parents, and their descendants, or the deceased's siblings).

If the spouse is not the sole heir, this can have another negative consequence. The spouse will become part of the community of heirs or inheritance community with the other statutory heirs, which means that they can only manage and dispose of the inheritance jointly with the other heirs (e.g., maintain, register a vehicle, etc.).

Although heirs can agree to a mutual division of the inheritance (either by items or shares), they must comply with the prescribed or statutory inheritance shares. Disputes often arise when there is an immovable property (apartment, house) in the estate that cannot be physically divided.

Furthermore, the situation can be complicated by unresolved or incorrect land registry status (e.g., the apartment is registered solely in the name of the deceased in the land registry, although it should have been registered jointly in the name of both partners, and a portion of it does not belong to the estate).

The same principles apply to unmarried partners, as partners in an unmarried relationship are legally equated to married couples.

Testamentary Freedom, Compulsory Heirs, and Statutory Shares

Testamentary freedom, or the ability to dispose of one's property through a will, is primarily limited by the rights of compulsory heirs to their compulsory share.

Through a will, the testator can validly dispose only of the portion of their estate that is freely disposable according to the law. However, the testator can also distribute and determine the inheritance within the disposable portion of the estate through the will, specifying which part of the inheritance (assets, shares) should be received by each individual heir. This allows the testator to avoid the division of the inheritance and related uncertainties and potential disputes in the probate process.

The financial burden or cost aspect in the event of an inheritance dispute should not be overlooked either. Compared to the costs of a lengthy court dispute or probate litigation, the expenses involved in preparing a will are negligible.

What is a will, and what can the testator specify in it?

A will is a statement of the testator's final wishes, usually regarding the designation of heirs and the distribution of assets among them.

A will may also include other provisions, such as burdens, bequests, disinheritance of an heir, inclusion of gifts in the inheritance share, etc.

Through a will, the testator can also:

  • Designate a legal entity, hospital, charitable organization, shelter, etc., as the recipient of the estate.
  • Specify that the estate be used for a specific purpose (e.g., the care of animals in a particular shelter; however, animals cannot be designated as heirs since they lack legal capacity).
  • Appoint an executor of the will, who will ensure the execution of the testator's final wishes after their death.

 

A will can pertain to the testator's entire estate (taking into account the rules of the Law on Inheritance regarding the disposable portion of the estate), or it can be limited to a specific part or individual item of the estate. Any portion of the estate not covered by the will will be inherited according to the rules of intestate succession.

If the will does not specify the portion of the estate it pertains to, it is assumed to apply to the entire estate that was owned by the testator at the time of their death.

In other words, the will (without limitations regarding the portion of the estate to be inherited by the heir or heirs) also applies to property that the testator did not dispose of during their lifetime because they acquired it later or were unaware of it at the time of making the will.

Testamentary Capacity, Who Can Make a Will, Validity of the Will?

A person who has reached the age of 15 and is legally competent or "sane" is capable of making a will.

A person may be legally incapacitated or partially legally incapacitated due to illness affecting their legal capacity (e.g., dementia), but such incapacity must be established and proven. A presumption is not sufficient.

An absolutely or relatively invalid will

This means that the will of a person is not invalid apriori; it remains valid until proven otherwise or until its validity is challenged in court in case of a dispute!

An absolutely invalid will would be one that is clearly unable to be valid, for example, if it was made by a person younger than 15 years or if its subject matter involves items that are not part of legal transactions, and so on.

Can the testator still dispose of the property designated to the heirs through a will during their lifetime?

The testator is not bound by the will and can freely dispose of such property, such as selling, gifting, or using it.

Similarly, the testator can revoke the will at any time, either through an explicit statement or by destroying it or creating a new will that completely changes the content of the previous one.

Is there a prescribed form for a will, invalidity of the will?

A will is valid only if it is made in the prescribed form. An oral will is not valid, except in exceptional circumstances, such as a last will expressed in extraordinary situations in the presence of two witnesses, etc.

If a will is not made in the prescribed form, it is absolutely invalid or void.

A will can be validly made in one of the prescribed forms:

  • Holographic will: The testator must write it in their own handwriting and sign it at the end.
  • Written will with witnesses: The testator must sign the document in the presence of two witnesses.
  • Court will: The testator declares their final wishes on record in court.
  • Notarial will: The will is prepared in the form of a notarial deed.
  • Other types of wills (made abroad, international wills, on a ship, etc.).

 

For more detailed information on the invalidity and revocation possibilities of a will, please read the articles and the questions and answers that follow.

Attorney Jurij Kutnjak from Slovenia, Maribor offers comprehensive legal assistance in inheritance and handling all inheritance law issues: from drafting wills and concluding contracts with inheritance law elements (contract for life interest, contract for lifetime support, handing over contract) to representation in probate proceedings and possible litigation related to the estate or inheritance throughout Slovenia.

To schedule a consultation regarding inheritance and representation in the probate process, call attorney Jurij Kutnjak during business hours at the phone number 00 386/2/25-23-780 or send an email to info@odvetnik-kutnjak.si.

Legal Documents:

e-forms
authorization for representation
will, revocation of will, inheritance statement, renunciation of inheritance, proposal for the issuance of a European certificate of inheritance

Legislation:

 

Judicial Practice:

Personal data protection Cookie policy Legal notice

All rights reserved © 2025 Odvetnik Kutnjak.

web-dev-logoWeb design: Carpediem d.o.o.
Back to top