Void and voidable wills and other legal transactions

Bulgarian legislation takes an unusual approach to the invalidity of wills. On the one hand, the Succession Act contains special rules reflecting the character of a will as a unilateral transaction taking effect on death (mortis causa). On the other, by virtue of Article 44 of the Obligations and Contracts Act, that Act’s general rules on invalid transactions also apply unless a special rule excludes them. The Succession Act draws the traditional distinction between a void will and a voidable will. There are also distinctive features: the way the testator’s intention was formed and the psychological circumstances accompanying that process bear on the specific grounds of invalidity. The limitation period for bringing proceedings to set aside a voidable will under Article 44 of the Succession Act also differs from the corresponding rules in Article 32 of the Obligations and Contracts Act. Otherwise, where no special rule exists, the latter Act’s general provisions on invalid transactions apply. Under Supreme Court of Cassation Judgment No. 198 of 10 August 2015 in civil case No. 5252/2014, Fourth Civil Division, where invalidity is alleged by several claims or pleas in reply, the claimant cannot determine how they are joined. Whatever order or relationship the claimant specifies, the grounds are advanced in the alternative: a transaction cannot be declared void on more than one ground, nor can it simultaneously be void, liable to be set aside, and subject to relative or pending ineffectiveness. The court must first consider the grounds of nullity in order of seriousness, beginning with breach of the law, followed by absence of legal cause, lack of consent, simulation, impossibility of the subject matter, conflict with public morals and lack of the required form. If the court finds the transaction valid (or void for want of form, which by its nature means that the elements necessary for conclusion were incomplete), it must then examine grounds for avoidance, again in order of seriousness: breach of guardianship or curatorship rules, inability to understand or control one’s actions, duress, fraud, mistake and, lastly, extreme necessity. If the court finds that the transaction is not liable to be set aside (or is void for want of form, in the sense just described), it must next examine the relevant ground of ineffectiveness, such as conclusion by a purported representative acting without or beyond duly conferred authority. The cited binding case law requires courts to consider claims of nullity before claims for avoidance, in order of the seriousness of the defects rather than the order chosen by the claimant. It also applies where a will is challenged by claims alleging both nullity and voidability. A void will cannot be set aside, and the legal consequences differ according to the form of invalidity.

Claims joined in the same proceedings in this way are treated as alternatives. Each successive claim may be examined only if the procedural condition for doing so is met: dismissal of the preceding claim.

This article is not a legal opinion or advice concerning a particular situation or person. For assistance with a specific case, consult a lawyer who practises family and succession law.