Forged Holographic Will

Forged Holographic Will: Challenge and Declaratory Action for Invalidity

A holographic will is one of the most common ways to dispose of property upon death. It is easy to draft, as it does not require a notary. However, precisely because of its simplicity, disputes often arise as to its authenticity. In cases where there are serious indications that the will was not written and/or signed by the testator, it is possible to bring a declaratory action for the invalidity of the will by anyone who has a legitimate interest (Article 70 of the Greek Code of Civil Procedure), invoking—where appropriate—allegations of forgery.

This issue is particularly serious, as it concerns the will of the deceased and the fate of their estate.

What is a holographic will?

According to the Greek Civil Code (Article 1721 GCC), a holographic will is one that:

• Is written entirely in the testator’s own handwriting
• Bears a date
• Is signed by the testator

If any of the above elements is missing, the will may be invalid.

When is a will considered forged?

A will is considered forged when:

• It was not written by the testator
• The signature is not genuine
• Its content has been falsified
• It has been altered at a later stage

Forgery may concern either the entire document or part of it.

Who may bring a declaratory action for invalidity?

The right to bring such an action belongs to anyone who has a legitimate interest, namely:

• Intestate heirs
• Persons excluded by the will
• Persons adversely affected by its content

The action is brought against those who benefit from the will.

What is the legal basis of the action?

The declaratory action for invalidity of a holographic will is based on:

• The provisions on wills (Articles 1710 et seq. GCC), and in particular on the required form of a holographic will (Article 1721 GCC)
• Article 70 of the Greek Code of Civil Procedure (declaratory action)
• The general provisions on invalidity

If it is proven that the statutory form was not observed (e.g. not handwritten by the testator / not genuinely signed), the will is invalid and produces no legal effects.

How is forgery proven?

Evidence is the crucial part of the case. It usually requires:

• Handwriting expert examination
• Comparison with other genuine handwriting samples
• Witness testimony
• Medical evidence (if the testator’s capacity is disputed)

The court often appoints a handwriting expert.

What happens if the action is upheld?

If the court finds that the holographic will is invalid (e.g. due to non-compliance with the statutory form and/or forgery):

• The invalidity of the will is judicially declared
• It is treated as if it never existed
• The estate is distributed according to the law (intestate succession) or on the basis of a previous valid will

Is there a time limit for bringing the action?

The two-year limitation period of Article 1788 GCC (two years from the publication of the will) mainly concerns cases of voidability (e.g. mistake, fraud, duress), where timely exercise of the right is required.

Where invalidity is invoked (e.g. lack of handwritten form / lack of statutory form), the two-year period does not apply. However, delay may significantly hinder the taking of evidence and create practical and procedural difficulties.

What is the difference between invalidity and voidability?

Forgery leads to the invalidity of the will, with the result that it produces no legal effects as a last will.

By contrast, other cases (e.g. duress, mistake) lead to voidability, which requires the exercise of a specific right within a time limit.

What are the consequences for the person who used a forged will?

In addition to invalidity, there may be:

• Civil claims for damages
• Criminal prosecution for forgery
• An obligation to return property

Forgery constitutes a criminal offence.

Practical steps when there is suspicion of forgery

1. Collection of handwriting samples of the testator
2. Legal assessment by a lawyer
3. Filing of a declaratory action for invalidity (with invocation, where appropriate, of allegations of forgery)
4. Request for expert examination

The procedure requires careful preparation.

Who may challenge a will?

Any person who has a legitimate interest may challenge a will. This means that they must be directly affected by its content.

In particular, the following have standing:

• Intestate heirs, i.e. those who would inherit by law if there were no will. These heirs accrue/acquire the estate from the time of the testator’s death, subject to the right of renunciation.
• A creditor of an intestate heir, where the latter remains inactive and does not exercise their inheritance rights, may act to protect their interests by bringing an action by way of oblique action (actio pauliana / indirect action) under Article 72 of the Greek Code of Civil Procedure, provided that the right is not strictly personal to the debtor.

Therefore, not just any third party may dispute a will. A specific legitimate interest is required.

When is the authenticity of a will challenged?

Challenges to authenticity mainly concern the holographic will, which, according to Article 1721 GCC, must:

• Be written entirely in the testator’s own hand,
• Bear a date,
• Be signed by the testator.

Authenticity is usually challenged when:

• It is alleged that it was not handwritten by the testator,
• The signature is disputed,
• The testator’s mental capacity at the time of drafting is questioned.

In the case of public or secret wills, challenges mainly concern compliance with the prescribed form.

In such cases, anyone with a legitimate interest may apply to the competent court seeking a declaration of invalidity.

It is important to note that, for the invalidity of a holographic will, it is sufficient to prove the absence of one of the essential elements of validity.

Must it always be proven that the will is forged?

Not always.

A holographic will may be invalid without being forged. For example:
If it was written by a third person at the dictation of the testator, then it is not forged (since no falsification is attempted), but it is invalid, because it does not meet the requirement of handwritten drafting by the testator (see Piraeus Court of Appeal 226/2021).

Therefore, a challenge does not always require an allegation of forgery; it may be based simply on lack of statutory form.

When does the right to seek annulment lapse?

Article 1788 GCC provides that the right to annul a testamentary disposition is time-barred after two years from the publication of the will.

However, this provision exclusively concerns cases of voidability (e.g. mistake, duress).

The declaratory action for invalidity is not subject to the two-year limitation period of Article 1788 GCC; according to case law, it is not subject to limitation, and in any event not to a period shorter than twenty years.

Therefore, the distinction between invalidity and voidability is crucial.

Who bears the burden of proof?

The burden of proof varies depending on the type of action.

Where a party relies on a holographic will, they bear the burden of proving that the required form has been observed, i.e. that the text is handwritten and signed by the testator (not merely that the signature “looks similar”).

In a negative declaratory action, the claimant may deny the opposing party’s right, but the burden of proof is determined by the rules governing the invocation and proof of the right based on the will.

When an autonomous action for forgery is brought

If a specific action is brought alleging that the will is forged, then:

• The burden of proving forgery lies with the claimant.
• The defendant must prove genuineness.

It is noted that, according to Article 1777 GCC, after five years from the publication of a holographic will, if its authenticity has not been challenged in relevant proceedings, a rebuttable presumption of authenticity arises, which may affect the burden of proof.

What applies to preliminary proof (Article 463 GCCP)?

Article 463 of the Greek Code of Civil Procedure provides that, where forgery is alleged, preliminary proof is required, namely:

• Submission of evidence,
• Specific identification of witnesses.

The rule of Article 463 GCCP applies primarily where forgery is raised incidentally (e.g. by objection / incidental claim) in pending proceedings.

According to case law, where the challenge is brought by way of an autonomous declaratory action, the issue is assessed under the general rules of evidence, without excluding the possibility that corresponding specificity and substantiation may be required, depending on the case.

1. Only a person with a legitimate interest may challenge a will.
2. A holographic will must be entirely handwritten and signed by the testator.
3. It is not necessary to prove forgery in order for a will to be declared invalid.
4. The two-year limitation period concerns only voidability, not invalidity.
5. The burden of proof depends on the type of action.
6. The rules on preliminary proof under Article 463 GCCP apply primarily where forgery is raised incidentally; in an autonomous declaratory action, the general rules of evidence apply.

Because disputes over wills are particularly complex and often involve significant financial interests, specialised legal assessment of each case is absolutely necessary.

Frequently Asked Questions (FAQ)

1. If I do not recognise the handwriting, is that enough?
   No. Technical proof through handwriting examination is required.
2. Who pays the expert?
   Initially, the applicant, but the cost may be awarded at the end of the proceedings.
3. How long does the process take?
   Usually several months to years, depending on the court.
4. Can criminal proceedings be initiated?
   Yes, if the elements of forgery are established.
5. What if there is a previous will?
   If the latest one is found forged/invalid, the previous valid will applies.
6. What if the testator had dementia?
   Then their legal capacity at the time of drafting may also be challenged.
7. Can only part of the will be invalidated?
   Yes, if the forgery/defect concerns a specific part.
8. Can I claim compensation?
   Yes, if damage has been suffered.
9. Is there a risk of costs if I lose?
   Yes, court costs may be awarded.
10. Are such cases common?
    Yes, especially in family disputes involving substantial estates.

Conclusion

The declaratory action for invalidity of a holographic will due to forgery is a serious and demanding legal procedure. Its success depends on proper substantiation and the evidentiary process. In cases where there are serious indications of forgery, prompt legal guidance is essential in order to safeguard the inheritance rights of those concerned.

This article is for informational purposes only and does not constitute legal advice. Each case requires individual assessment, based on the specific facts and the applicable legal framework. For specialised advice, please contact our law firm.