Drafting a will is one of the most important steps in arranging one’s financial future, yet many people put it off, believing it is still too early or that the process is overly complicated. Below is an overview of the key rules of Croatian succession law — from the requirements of validity to the grounds for revocation — that every will must satisfy.
What Is a Will and Why It Is Worth Making
A will is a unilateral declaration of intent, meaning that no one else’s consent is required for its validity: it is sufficient that it be made by the person whose last wishes it expresses (the testator). Precisely because this is such an important decision, however, the law prescribes strict formal requirements for a will. If those requirements are not observed, the will may be declared invalid, regardless of how clearly the testator’s intentions are expressed.
A will may be amended or revoked in its entirety at any time, provided the testator retains testamentary capacity – a point discussed further below. A will must also always be made personally; it cannot be signed on the testator’s behalf by an attorney-in-fact or any other person.
Who May Make a Will?
Croatian law imposes only two requirements for making a valid will: the person must have reached 16 years of age, and must, at the time the will is made, have testamentary capacity – that is, be able to understand the nature of the act and its consequences. Full legal majority is not required; reaching the age of 16 is sufficient.
The law presumes that every person has testamentary capacity unless proven otherwise. This means that if someone later wishes to challenge a will on the ground that the testator lacked capacity, the burden of proof lies with that person, not with the testator’s estate. If the testator subsequently loses capacity – for instance, due to illness – this does not affect the validity of a will that was properly made earlier, while the testator was still capable.
When Is a Will Invalid or Voidable?
A will is null and void by operation of law if, at the time it was made, the testator had not yet reached 16 years of age or lacked testamentary capacity.
In addition, a will may be annulled upon request where the testator was compelled to make it by threat or duress, or did so as a result of being misled. Unlike nullity, which the court must take into account of its own motion, annulment must be sought by a person who has a legal interest in doing so – for example, someone who would have inherited by operation of law had there been no will.
A common rule applies to every form of will that requires witnesses: a witness may not be a minor or a person lacking legal capacity, nor a person who cannot read or write or who does not understand the language in which the will is made. Nor may a witness be the testator’s spouse or a close relative, or a person to whom something is bequeathed under the will – any such provision made in that witness’s favour would be void.
Finally, a will must be made in one of the forms prescribed by law. Failure to observe the prescribed form is likewise a ground for invalidity.
What Types of Wills Exist
The Croatian Succession Act provides for several forms of will, the choice of which depends on the testator’s circumstances and abilities.
Holographic will – the simplest and most common form. The entire text is handwritten and signed by the testator personally. Stating the date and place of execution is not mandatory, but is highly advisable, as it later helps establish which will is the most recent where more than one exists. Importantly, a will typed on a computer or typewriter and merely signed by hand does not qualify as a holographic will.
Written will made in the presence of witnesses – suitable for persons who are unwilling or unable to write out the entire text themselves. The testator, or another person acting at the testator’s dictation, writes out the will, and the testator then signs it in the presence of two witnesses and declares that it is their will. The witnesses then sign the will as well; they need not know its contents – it is sufficient that they confirm the testator signed the will before them and declared it to be theirs.
Notarial (public) will – drawn up by a judge, a court advisor, or a public notary (or, abroad, by a consular representative) at the testator’s dictation. This form is mandatory for persons who cannot read or write, and is also advisable for those seeking additional legal certainty. The authorised person verifies the testator’s identity, informs them of the legal consequences of the will, and keeps a record of the entire procedure.
Oral (nuncupative) will – permitted only in extraordinary circumstances (such as a state of war, an earthquake, or serious illness) where the will cannot be made in any other form. It is declared before two witnesses and remains valid for only 30 days after the extraordinary circumstances cease; after that period, unless a regular will has been made in the meantime, it lapses.
International will – a special form intended for persons with assets or ties in more than one country. It converts a private instrument into one bearing the characteristics of a public document, thereby facilitating its recognition abroad.
The Reserved Share – A Limit on Testamentary Freedom
Although a testator is free to dispose of their assets by will, that freedom is not unlimited. The law protects the testator’s closest relatives – children, the spouse and, in certain cases, the parents – through a right known as the reserved share (nužni dio): a portion of the estate to which they are entitled even where they have been entirely excluded under the will. The reserved share amounts to one half of what that person would have received had there been no will at all. In other words, a testator may deprive someone of an inheritance, but cannot entirely bypass those whom the law protects as forced heirs.
For example, if the deceased leaves four forced heirs, each is entitled to a reserved share equal to one-eighth of the total value of the estate.
How a Will Is Revoked or Amended
For as long as the testator retains testamentary capacity, they remain entirely free to amend or revoke their will in full – in one of three ways: by making a new will, by an express declaration of revocation (in writing), or by destroying the existing instrument.
Where a new will is made whose content differs from an earlier one, the provisions of the new will prevail, while the provisions of the earlier will that do not conflict with it remain in force.
One thing cannot be done: a will cannot include a clause by which the testator waives, in advance, the right to revoke it in the future. Any such provision is simply treated as though it had never been included.
What Happens to a Will After Death
A testator may keep their own will, entrust it to a person of trust, or deposit it with a court, a public notary, or a consular representation abroad. Whoever draws up the will forwards the relevant particulars to the Croatian Registry of Wills (Hrvatski upisnik oporuka), maintained by the Croatian Chamber of Public Notaries; the fact that a will has not been registered does not affect its validity.
Following the testator’s death, the public notary conducting the probate proceedings opens the will, reads it, and draws up a record of the proceedings – regardless of whether the will appears valid at first glance, or whether more than one will exists. This procedure, known as the proclamation (probate) of the will, is attended by the heirs, legatees, and any other persons asserting a right under the will.
When probate proceedings are opened, the authority conducting them (a public notary or the court) makes an inquiry to the Registry, for a fee of EUR 2.65, in order to establish whether a will has been recorded in it.
Conclusion
Freedom of testation is one of the fundamental features of testate succession. Unlike intestate succession, which strictly determines who inherits and in what order, a will allows a person to freely choose who is to receive their assets. That freedom nonetheless has its limits, most notably in the form of the reserved share guaranteed by law to the testator’s closest relatives. For this reason, making a will, though seemingly straightforward, requires a sound understanding of the applicable formal requirements – an error in form is enough to render the entire document legally ineffective.
Our team has many years of experience in succession law. For drafting, amending, or verifying the validity of a will, as well as for any other matters relating to testate succession, our office is at your disposal, with the aim of ensuring that your last wishes are expressed clearly, securely, and in a manner that is legally valid.