Invalidity of a Subsequent Will: A Legislative Paradox through the Prism of the Theory of Legal Transactions

Abstract

The article is devoted to the theoretical and legal analysis of the consequences of declaring a subsequent will invalid through the prism of the general theory of legal transactions. The relevance of the topic is due to a doctrinal paradox: under Part 4 of Art. 1254 of the Civil Code of Ukraine (as well as Part 4 of Art. 1750 of the Draft of the updated Civil Code of Ukraine), the annulment of a subsequent will restores the validity of the previous one only in exceptional cases of defects of will. The purpose of the article is to substantiate the logical contradiction between the specified selective approach of the legislator and the principles of private law, as well as to develop a model for resolving this legal conflict. As a result of the study, it is proven that the current regulation artificially transforms inheritance by will into inheritance by law, which violates the presumption of lawfulness of a legal transaction. From the standpoint of civil doctrine, it is substantiated that an invalid transaction as a legal fiction should not produce any legal consequences from the moment of its commission, including the revocation of a prior expression of will. At the same time, the analysis of the legal positions of the Supreme Court revealed a critical detachment of judicial practice from this theory: the courts strictly adhere to the letter of the law, which leads to negative consequences and preservation of the legislative paradox. The critical risks are proven under which, due to formal procedural violations, property passes to persons whom the testator consistently tried to exclude from inheritance. Proposals de lege ferenda regarding the improvement of rule-making technique are formulated. The necessity of eliminating the conflict by introducing a unified norm providing for the unconditional restoration of the validity of a previous testamentary disposition in case of invalidity of a subsequent will is substantiated, which will ensure compliance with the principles of legal certainty, justice, and good faith. The practical significance of the findings lies in the fact that the formulated conclusions and proposals can be directly utilised in the process of updating civil legislation, as well as in the law enforcement practice of judicial authorities when resolving the relevant category of disputes.