Making a will in Estonia

Which will to choose: notarial or private?

A will is a unilateral transaction by which the testator makes dispositions of the estate in the event of their death, and the testator makes it personally (PärS § 19 lg 1 and 2) [8].

• A notarial will is a will authenticated by a notary or a will deposited with a notary (PärS § 20 lg 2) [1]. The notary authenticates a will they drew up according to the testator's declaration of intent or one the testator submitted; the testator signs it in the notary's presence (PärS § 21 lg 1 and 2) [9]. To deposit a will, the testator personally hands their last will to the notary in a sealed envelope (PärS § 22 lg 1) [10].
• A private will is a will signed in the presence of witnesses or a handwritten will (PärS § 20 lg 3) [1].

An important difference is how long it stays valid: a private will expires if six months have passed since the day it was made and the testator is still alive (PärS § 25 lg 1) [4]. If a handwritten will is submitted to a notary and the notary draws up a notarial deed on it, it is valid as a notarially authenticated will (PärS § 24 lg 2) [2].

What must a private will look like?

A handwritten will is written by the testator from beginning to end in their own hand, states the date and year it was made and is signed by the testator (PärS § 24 lg 1) [2].

For a will signed in the presence of witnesses:

• the testator signs it in the presence of at least two witnesses with active legal capacity, who must be present at the signing at the same time, and states the date and year it was made (PärS § 23 lg 1) [3];
• the testator tells the witnesses that they have been called to witness the making of a will and that it contains the testator's last will; they need not know its content (PärS § 23 lg 2) [3];
• the witnesses sign immediately after the testator and confirm by their signature that the testator signed it personally and, as far as they can tell, has active legal capacity and is capable of making decisions (PärS § 23 lg 3) [3].

Such a will need not be written by the testator, but the testator must write the date and year personally (Supreme Court judgment 2-17-5110/111) [11]. A witness may not be a person if the will is made in favour of that person, their ascendant or descendant, their brother or sister or a descendant of those, their spouse or registered partner, or an ascendant or descendant of their spouse or registered partner (PärS § 23 lg 4) [3]; if this is breached, only the dispositions made in breach are void (PärS § 23 lg 5) [3].

If a private will states neither the date nor the year and the time it was made cannot be established otherwise, the will is void (PärS § 25 lg 2) [4]; according to the Supreme Court, the date may also be established by the witnesses' testimony (judgment 2-17-5110/111) [11].

Who can make a will?

A minor of at least 15 years of age may make a will in notarially authenticated form and needs no consent from their legal representative to do so (PärS § 27) [12].

A will cannot be made through a representative, and appointing a guardian does not cover a person's capacity to make a will; a will may be valid even with a lasting mental disorder if the person understood its meaning when making it (Supreme Court judgment 2-17-5110/111) [11].

How to change or revoke a will?

• A notarial will may be revoked by a notarial or private will or by a succession contract; a private will also by destroying it (PärS § 88 lg 2) [5].
• An earlier will loses validity to the extent it conflicts with the later one; if only part is revoked, the rest of the will remains valid (PärS § 88 lg 3 and 4) [5].
• If a notarial will was revoked or changed by a private will and the private will has expired after six months, the notarial will applies (PärS § 88 lg 6) [5].
• The testator may withdraw a will deposited with a notary at any time (PärS § 22 lg 2) [10].

A joint will of spouses is made in notarially authenticated form (PärS § 89 lg 3) [13]. While both spouses are alive, either of them may unilaterally revoke an interdependent disposition by a notarially authenticated will; the disposition is deemed revoked once the other spouse has received notice of the revocation transmitted through a notary (PärS § 93 lg 1) [14]. After the other spouse's death, the surviving spouse can, as a rule, revoke it only by renouncing the estate left to them under that will (PärS § 93 lg 2 and 3) [14].

A will in favour of a spouse is void if the marriage ended before the testator's death or the testator had filed for divorce with a court or given written consent to the divorce; similar rules apply to a registered partner and the ending of a cohabitation agreement. The will remains valid if it can be presumed that the testator would have made it in those cases too (PärS § 32 lg 1 and 2) [15].

If, when the will was made, there was a circumstance that gives grounds for annulling it under the General Part of the Civil Code Act, then after the testator's death the will may also be annulled by a person who would inherit if the will or part of it were invalid; this requires an action in court filed within one year of learning of the ground for annulment, but not later than 30 years after the succession opened (PärS § 88 lg 7) [5].

What is a succession contract?

A succession contract is an agreement between the testator and another person by which the testator names the other party or another person as their heir or leaves them a legacy, a testamentary obligation or a testamentary assignment (PärS § 95 lg 1) [16]. As the testator, only a person with active legal capacity may conclude it, and only personally (PärS § 95 lg 3) [16]. Succession under a succession contract takes priority over succession under a will (PärS § 9 lg 2) [17].

A succession contract may not restrict the testator's right to possess, use and dispose of their property (PärS § 96 lg 1) [18]. While the parties are alive, it can be revoked by a notarially authenticated agreement or a new succession contract (PärS § 102 lg 1) [19]. The testator may withdraw from it unilaterally only in the cases named in the law, for example where a right of withdrawal was agreed in the contract, by a notarially authenticated declaration (PärS § 103 lg 1 and 2) [20]. According to the Supreme Court, the notary should explain that the possibilities of changing or revoking a succession contract unilaterally are extremely limited compared with a will, and agreeing on a right of withdrawal should therefore be considered (judgment 2-20-3869/58) [7].

What the law says

• „Testamendi teeb testaator isiklikult.“ [8] (translation: the testator makes the will personally; PärS § 19 lg 2) – a will cannot be made through someone else.
• „Kodune testament kaotab kehtivuse, kui selle tegemise päevast on möödunud kuus kuud ja testaator sel ajal elab.“ [4] (translation: a private will expires if six months have passed since the day it was made and the testator is alive at that time; PärS § 25 lg 1) – for the long term, a notarial will is the fitting choice.
• „Testaator võib testamendi või mõne selle osa igal ajal tühistada hilisema testamendi või pärimislepinguga.“ [5] (translation: the testator may revoke the will or any part of it at any time by a later will or a succession contract; PärS § 88 lg 1).
• „Testamendi tõlgendamisel lähtutakse testaatori tegelikust tahtest.“ [21] (translation: a will is interpreted according to the testator's actual intent; PärS § 28).

What to do

1. Choose the form – notarial or private (PärS § 20 lg 1) [1] – and bear in mind that a private will expires if six months have passed since the day it was made and you are still alive (PärS § 25 lg 1) [4].
2. Name the heirs and the items so that your intent leaves no doubt (PärS § 29 lg 1) [22]; if you do not set the heirs' shares, they are deemed equal (PärS § 40 lg 1) [23].
3. In a private will, state the date and year and choose witnesses who, and whose spouses and relatives listed in PärS § 23 lg 4, are not beneficiaries of the will (PärS § 23 lg 1 and 4) [3].
4. You may notify the succession register of a private will through the web service or by sending a notice to the registrar (PärS § 177¹ lg 3) [24].
5. Review the will when your marriage ends (PärS § 32 lg 1) [15] and change it by making a new will (PärS § 88 lg 1) [5].

Frequently asked questions

Can I disinherit my child by will?

Yes, but if by will the testator disinherits, or reduces the share of, a descendant entitled to inherit by law, their parents or their spouse to whom, at the time of death, they owed a valid maintenance obligation under the Family Law Act, those persons may claim a compulsory share from the heirs (PärS § 104 lg 1) [25]; a registered partner to whom the testator owed a valid maintenance obligation at the time of death has the same right (PärS § 104 lg 1¹) [25]. The compulsory share is half of the value of the share the heir would have received by law (PärS § 105 lg 1) [26], and the claim is for payment of money (PärS § 104 lg 5) [25]. Only a person who committed a criminal offence against the testator, their spouse, registered partner, ascendant or descendant or another person especially close to the testator, or who intentionally and materially breached their statutory duty to maintain the testator, may be deprived of the compulsory share; the reason must be stated, and if it is not stated or does not match these grounds, the deprivation is invalid (PärS § 108 lg 1 and 2) [27].

What happens to property not mentioned in the will?

If the will covers only part of the estate, the rest is inherited by law, unless a succession contract has been concluded for it (PärS § 39 lg 2) [28].

Can a witness be an heir under the will?

Not for a will signed in the presence of witnesses: dispositions in favour of such a witness are void (PärS § 23 lg 4 and 5) [3]. If witnesses signed a handwritten will, it is valid as a handwritten will and this ban does not apply (PärS § 24 lg 3) [2].

Where should a private will be kept?

The testator may keep it or give it to another person for safekeeping; on learning of the testator's death, the keeper must submit the will to a notary without delay (PärS § 26 lg 1 and 2) [29].