Validity of a holograph will and graphological expert opinion procedure
29.09.2022
CASE DESCRIPTION
This analysis refers to a case when the clients’ father Gj. T. has written a holograph will; and the clients are siblings – brother and sister.
During the succession proceeding before a notary dating from November 13th 2013, at the hearing the defendant emphasized that the deceased father had left a holograph will.
The notary declared the holograph will on October 29th 2014 and the plaintiff raised objections that the will had not been composed by the depositor, with the notary terminating the succession proceeding and addressing the daughter D. S. to a dispute on establishing lapsing of will.
Before submitting the lawsuit, the plaintiff hired an expert witness for graphological expert opinion procedure requesting that the expert witness performs his expertise on the abbreviated signature in the will. Namely, at the of end of the will there are two small illegible letters – the request referred to establishing whether those were written by the testator.
The expert witness was neither asked to perform full expertise on the complete holograph will, nor on the signature at the end of the will. The expert witness was supposed to perform his expertise on whether those two letters, i.e. the so-called abbreviated signature was authentic with the indisputable signatures by the testator.
On October 17th 2014, the expert witness gave his expert opinion that the photocopied abbreviated signature on the photocopied holograph will is not authentic with the indisputable signatures of the deceased Gj. T.
On April 28th 2018 by court order, the same expert witness performed an additional expertise where it was stated that the disputable signature did not contain sufficient number of general and individual identifiable graphoscope features and the disputable signature was not eligible for graphological identification with the indisputable signatures and handwritings, whereas it was eligible for graphoscope identification with the indisputable signatures.
On the other side, in the holograph will there is name and surname of the depositor, name of the person of inheritance and what is being inherited – which is the defendant and at the end there is a name and a surname of the depositor along with year of birth and the unique identification number.
Below this, there are two letters as initials which are both illegible and the expert witness says that these are not written from the legator.
In the case, there is an expert opinion procedure by the expert witness institute in Skopje under number EOP 4-244/2015 of October 5th 2015 in which the expert witness stipulates that the disputable handwriting was the deceased Gj. T.’s handwriting and that it was identical with the submitted indisputable handwritings from the same person. However, this expert opinion procedure was not taken into consideration by the court since there were process obstacles due to the fact that it was presented to court after submitting the lawsuit response.
This was surely an obstacle for performing an extra expert opinion procedure, although this expert witness finding was later on presented and this is the reason why the court did not take it into consideration.
It was not until April 8th 2018 when the same expert witness, suggested from the very beginning by the plaintiff, presented an additional expert opinion procedure where he stipulated that the full name and surname of the deceased person and his signature were not authentic and that they had differences according to graphological characteristics.
This additional expert opinion procedure performed by the same expert witness which is totally different from the previous procedures was presented on April 8th 2018, i.e. after four years.
The verdict by the Appeal Court in Bitola was passed on June 1st 2018 and it is based exclusively on this new expert opinion procedure. Due to this reason exclusively, the Appeal Court alters the verdict by the Court of First Instance in Ohrid by which the plaintiff’s request was rejected and by which it is established that this will is untrue thus not creating any legal action.
At the moment when this expert witness gave this additional expert witness finding i.e. finding on April 8th 2018, he had no license for performing expert opinion procedures because according to the Notification 08-3408/4 of October 19th 2018 sent by the Ministry of Justice to the defendant – the expert witness’s license expired on March 15th 2017. The expert witness had not submitted a request to the Ministry of Justice for extending the expert witness license two months in advance before the expiry date of five years as regulated by the legislative.
The Ministry’s registry is conducted electronically, and all changes have been recorded electronically as well, including the registry’s updates.
The Appeal Court in Bitola in its Verdict CC 2260/17 of June 1st 2018 altering the verdict by the Court of First Instance and accepting the lawsuit by the plaintiff for establishing falsehood of the will, has based its verdict exclusively on the additional expert opinion procedure, specifically on its new findings by the expert witness which are totally opposite from the previous expert opinion procedure – this was concluded by taking into account the fact that the expert witness had no license for performing expert opinion procedures and the license had expired, without submitting a request for its extension.
The Supreme Court in its Verdict REV 2-499/18 of February 25th 2020 rejected the defendant’s revision as groundless and fully accepted the additional expert opinion procedure which was exclusively based on the verdict of second instance, and in relation to the expert witness’s expired license at the moment of preforming the expert opinion procedure. The Supreme Court stated that this was not a new procedure, rather an additional one which served to further explain the existing one, and not to prepare new expert opinion procedure.
The Supreme Court also accepted that in the expert witness’s registry, this expert witness still existed in the records, which means he was not deleted from this registry and as such he could still perform procedures.
RELEVANT DOMESTIC LAW
Law on inheritance article 66
Law on obligation relations article 95
Law on expert opinion procedure article 19, paragraph 4 and article 27, paragraph 1, points 4 and 5
ANALYSIS
In the composed will handwritten by the deceased person there is a depositor, there is an inheritor with name and surname, as well as the property that is being bequeathed and at the end there is name and surname of the deceased person, date of birth and unique identification number.
There are two illegible letters right below this signature.
By submitting the lawsuit all of four years from the very first expert opinion procedure performed by the expert witness, an expert opinion procedure was requested referring solely to these two letters since the plaintiff doubted that those were not imported in the will by the depositor; the other part was not disputable, so that in the end it was requested an expert opinion procedure to be performed on the full signature including the name and surname of the deceased. The verdict by the higher courts is exclusively based on this last expert opinion procedure.
This means that the will contains everything necessary for its validity, and most importantly it is written with clearly expressed free will by both the depositor and the inheritor.
The will which is written using shorthand symbols is valid, if it is undoubtedly written personally by the legator. His signature should be the one which is usually used by the legator himself. Nonetheless, there are certain rules in the legal practice which determine that the legator’s signature is also valid in cases when the legator states that he himself, with his name and surname composes the will fully conscious using common sense. If, in such case, at the end of the will the legator has signed himself only with his name or surname, the will is valid.
The will is valid if it is in a written form and if at the end of that written form which is not necessarily marked as a will, the testamentary capacity is undoubtedly marked, as well as the family relationship of the legator with the person-inheritor is stated in that written form, for example your mother, your father; even though neither the legator’s name nor the legator’s surname is included in the will.
The will is valid if it is signed with generally known nickname or pseudonym which the legator had been using or the legator had been known by among a substantial number of people. Even in a case in which there is a last farewell letter with clearly expressed free will to appertain the property to a specified person stated in that letter – this represents a valid will if the other terms and conditions are met.
The expert legal opinion adopts a stance that the essential element for a will’s validity is the legator’s signature.
The law does not contain more precise provisions which declare what the signature should be like, and it is not specified the exact space where that signature should be put. The legator should sign himself with his full name and surname, however, the present legal practice also acknowledges the legator’s signature which has been mostly used as a manner of signing, i.e. the so-called abbreviated signature.
Putting only the legator’s initials in theory and practice is not accepted as a valid legator’s signature.
If we inspect the above mentioned analysis, the handwritten holograph will of the testator fully contains the elements – it is stated who the legator is, the inheritor’s name and surname are also stated, the property is marked, and at the end there is full name and surname of the legator, his day and month of birth, as well as his unique identity number.
According to the above written analysis, the illegible letters written below in the document are not of crucial importance about this will, because the will itself contains all the elements required by the legislative. Thus, from submitting the lawsuit by the plaintiff, the only disputable elements were these two letters – this is why she requested expert opinion procedure solely on these two disputable letters.
In the end, after a few years, an expert opinion procedure was requested which would examine the full name and surname. What emanated from this was that this signature was not the legator’s signature meaning that the verdicts passed from higher courts were based exclusively on the additional expert opinion procedure and the will was annulled.
If there possibly had been an extra expert opinion procedure, the situation might have changed; however that type of situation did not happen due to an oversight by the defendant who had not submitted the expert opinion procedure finding, which was in his favour, to the court within the lawsuit response.
Referring to the importance of the expert witness’s license, the Appeal Court and the Supreme Court accept that the last expert opinion procedure was performed at a time when the expert witness had no license, i.e. the license expired and he did not request for its extension. Nevertheless, in such case, the previous expert opinion procedures were accepted – the expert witness had his license, whereas this additional expert opinion procedure was only performed to complement and explain the previously prepared written finding and not to create a new one.
It is groundless why this statement given by the courts is not clear. Namely, in this specific case, the expert witness neither complemented nor explained the already given finding, right on the contrary – he gave expert opinion finding which is totally opposite from the first one. Instead of giving his expertise on the two illegible letters, he gave expertise on the full signature. Higher courts based their verdict exclusively on this new expert opinion procedure, which means this can hardly be a complement much less an explanation of the previously given opinions.
While performing this procedure, the expert witness had no license because it had expired and he did not request for its extension. The higher courts acceptance that the expert witness’s name was included in the records and this being the reason they consider his license as an orderly one is questionable. My opinion is that this record registry is not relevant regarding the question of whether someone owns an orderly license or not, simply because the records and the registry are a changeable category which might not be updated due to several factors and I consider there is no need that those should be stated here. In the letter itself, prepared by the Ministry of Justice, it was stated that the registry was conducted electronically and all the alterations are recorded electronically as well, including the registry’s updates.
It is not clear why this expert witness had not been deleted from the records and the registry when his license expired and the license extension was not requested. Records can hardly be accepted as criterion when discussing whether an expert witness owns an orderly license or not.
Article 27 of the Law on expert opinion procedure states that the expert opinion procedure license terminates if the expert witness him/herself requests so, if the expert witness deceases or if the license expires according to article 19, paragraph 4 of the law unless it is not extended. The same law states that the license is issued with validity of five years and it can be extended on the basis of submitted request on license extension to the Ministry of Justice two months at the latest before its expiry date of five years.
According to this, the law clearly specifies when the license expires and that refers to its own time flow even though its extension has not been requested in this specific case, the validity of five years has expired and the expert witness has not requested for an extension.
The expert witness presence in the records and in the registry is not a criterion and the law does not provide for the validity of the license.
At the counselling of all Appeal Courts held on April 13th 2018 in Skopje, a conclusion was drawn that at the time of preparing an expert witness finding and opinion, as well as appointing an expert witness, the expert witness can only perform his expertise if he owns a license and if he is enrolled in the expert witness registry.
At the working meeting of the Appeal Courts in RNM in relation to equating the legal practice, held on April 10th 2019 in Gostivar, a unanimous conclusion has been passed that at the moment of performing an expert opinion procedure, the expert witness is obliged to have a valid license irrespective of his/her enrollment in the list of expert witnesses.
From the above stated, it can be emanated that only the law on expert opinion procedures determines whether an entity owns a valid license or not, and if that validity has terminated, irrespective of the fact that the expert witness is enrolled in the recorded lists of expert witnesses.
This document is prepared by Vladimir Atanasov, a judge in retirement at the Supreme Court of RNM, judge of a long-standing career starting from the Court of First Instance in Bitola, leading to the District Court and the Appeal Court in Bitola, and then ending his career at the Supreme Court of the RNM.
Long-standing educator at the Academy for judges and public prosecutors
One term of office as a deputy president of the Macedonian Judges Association
Two study visits at the Court of Human Rights in Strasbourg
Member of the commission for preparing the methodology for the evaluation of judges
REFERENCE SOURCES
Law on inheritance
Law on obligation relations
Law on expert opinion procedure
Inheritance Law textbook by Dejan Mickovikj, PhD, Angel Ristov, PhD, and Elena Ignjatovska, PhD
This analysis refers to a case when the clients’ father Gj. T. has written a holograph will; and the clients are siblings – brother and sister.
During the succession proceeding before a notary dating from November 13th 2013, at the hearing the defendant emphasized that the deceased father had left a holograph will.
The notary declared the holograph will on October 29th 2014 and the plaintiff raised objections that the will had not been composed by the depositor, with the notary terminating the succession proceeding and addressing the daughter D. S. to a dispute on establishing lapsing of will.
Before submitting the lawsuit, the plaintiff hired an expert witness for graphological expert opinion procedure requesting that the expert witness performs his expertise on the abbreviated signature in the will. Namely, at the of end of the will there are two small illegible letters – the request referred to establishing whether those were written by the testator.
The expert witness was neither asked to perform full expertise on the complete holograph will, nor on the signature at the end of the will. The expert witness was supposed to perform his expertise on whether those two letters, i.e. the so-called abbreviated signature was authentic with the indisputable signatures by the testator.
On October 17th 2014, the expert witness gave his expert opinion that the photocopied abbreviated signature on the photocopied holograph will is not authentic with the indisputable signatures of the deceased Gj. T.
On April 28th 2018 by court order, the same expert witness performed an additional expertise where it was stated that the disputable signature did not contain sufficient number of general and individual identifiable graphoscope features and the disputable signature was not eligible for graphological identification with the indisputable signatures and handwritings, whereas it was eligible for graphoscope identification with the indisputable signatures.
On the other side, in the holograph will there is name and surname of the depositor, name of the person of inheritance and what is being inherited – which is the defendant and at the end there is a name and a surname of the depositor along with year of birth and the unique identification number.
Below this, there are two letters as initials which are both illegible and the expert witness says that these are not written from the legator.
In the case, there is an expert opinion procedure by the expert witness institute in Skopje under number EOP 4-244/2015 of October 5th 2015 in which the expert witness stipulates that the disputable handwriting was the deceased Gj. T.’s handwriting and that it was identical with the submitted indisputable handwritings from the same person. However, this expert opinion procedure was not taken into consideration by the court since there were process obstacles due to the fact that it was presented to court after submitting the lawsuit response.
This was surely an obstacle for performing an extra expert opinion procedure, although this expert witness finding was later on presented and this is the reason why the court did not take it into consideration.
It was not until April 8th 2018 when the same expert witness, suggested from the very beginning by the plaintiff, presented an additional expert opinion procedure where he stipulated that the full name and surname of the deceased person and his signature were not authentic and that they had differences according to graphological characteristics.
This additional expert opinion procedure performed by the same expert witness which is totally different from the previous procedures was presented on April 8th 2018, i.e. after four years.
The verdict by the Appeal Court in Bitola was passed on June 1st 2018 and it is based exclusively on this new expert opinion procedure. Due to this reason exclusively, the Appeal Court alters the verdict by the Court of First Instance in Ohrid by which the plaintiff’s request was rejected and by which it is established that this will is untrue thus not creating any legal action.
At the moment when this expert witness gave this additional expert witness finding i.e. finding on April 8th 2018, he had no license for performing expert opinion procedures because according to the Notification 08-3408/4 of October 19th 2018 sent by the Ministry of Justice to the defendant – the expert witness’s license expired on March 15th 2017. The expert witness had not submitted a request to the Ministry of Justice for extending the expert witness license two months in advance before the expiry date of five years as regulated by the legislative.
The Ministry’s registry is conducted electronically, and all changes have been recorded electronically as well, including the registry’s updates.
The Appeal Court in Bitola in its Verdict CC 2260/17 of June 1st 2018 altering the verdict by the Court of First Instance and accepting the lawsuit by the plaintiff for establishing falsehood of the will, has based its verdict exclusively on the additional expert opinion procedure, specifically on its new findings by the expert witness which are totally opposite from the previous expert opinion procedure – this was concluded by taking into account the fact that the expert witness had no license for performing expert opinion procedures and the license had expired, without submitting a request for its extension.
The Supreme Court in its Verdict REV 2-499/18 of February 25th 2020 rejected the defendant’s revision as groundless and fully accepted the additional expert opinion procedure which was exclusively based on the verdict of second instance, and in relation to the expert witness’s expired license at the moment of preforming the expert opinion procedure. The Supreme Court stated that this was not a new procedure, rather an additional one which served to further explain the existing one, and not to prepare new expert opinion procedure.
The Supreme Court also accepted that in the expert witness’s registry, this expert witness still existed in the records, which means he was not deleted from this registry and as such he could still perform procedures.
RELEVANT DOMESTIC LAW
Law on inheritance article 66
Law on obligation relations article 95
Law on expert opinion procedure article 19, paragraph 4 and article 27, paragraph 1, points 4 and 5
ANALYSIS
In the composed will handwritten by the deceased person there is a depositor, there is an inheritor with name and surname, as well as the property that is being bequeathed and at the end there is name and surname of the deceased person, date of birth and unique identification number.
There are two illegible letters right below this signature.
By submitting the lawsuit all of four years from the very first expert opinion procedure performed by the expert witness, an expert opinion procedure was requested referring solely to these two letters since the plaintiff doubted that those were not imported in the will by the depositor; the other part was not disputable, so that in the end it was requested an expert opinion procedure to be performed on the full signature including the name and surname of the deceased. The verdict by the higher courts is exclusively based on this last expert opinion procedure.
This means that the will contains everything necessary for its validity, and most importantly it is written with clearly expressed free will by both the depositor and the inheritor.
The will which is written using shorthand symbols is valid, if it is undoubtedly written personally by the legator. His signature should be the one which is usually used by the legator himself. Nonetheless, there are certain rules in the legal practice which determine that the legator’s signature is also valid in cases when the legator states that he himself, with his name and surname composes the will fully conscious using common sense. If, in such case, at the end of the will the legator has signed himself only with his name or surname, the will is valid.
The will is valid if it is in a written form and if at the end of that written form which is not necessarily marked as a will, the testamentary capacity is undoubtedly marked, as well as the family relationship of the legator with the person-inheritor is stated in that written form, for example your mother, your father; even though neither the legator’s name nor the legator’s surname is included in the will.
The will is valid if it is signed with generally known nickname or pseudonym which the legator had been using or the legator had been known by among a substantial number of people. Even in a case in which there is a last farewell letter with clearly expressed free will to appertain the property to a specified person stated in that letter – this represents a valid will if the other terms and conditions are met.
The expert legal opinion adopts a stance that the essential element for a will’s validity is the legator’s signature.
The law does not contain more precise provisions which declare what the signature should be like, and it is not specified the exact space where that signature should be put. The legator should sign himself with his full name and surname, however, the present legal practice also acknowledges the legator’s signature which has been mostly used as a manner of signing, i.e. the so-called abbreviated signature.
Putting only the legator’s initials in theory and practice is not accepted as a valid legator’s signature.
If we inspect the above mentioned analysis, the handwritten holograph will of the testator fully contains the elements – it is stated who the legator is, the inheritor’s name and surname are also stated, the property is marked, and at the end there is full name and surname of the legator, his day and month of birth, as well as his unique identity number.
According to the above written analysis, the illegible letters written below in the document are not of crucial importance about this will, because the will itself contains all the elements required by the legislative. Thus, from submitting the lawsuit by the plaintiff, the only disputable elements were these two letters – this is why she requested expert opinion procedure solely on these two disputable letters.
In the end, after a few years, an expert opinion procedure was requested which would examine the full name and surname. What emanated from this was that this signature was not the legator’s signature meaning that the verdicts passed from higher courts were based exclusively on the additional expert opinion procedure and the will was annulled.
If there possibly had been an extra expert opinion procedure, the situation might have changed; however that type of situation did not happen due to an oversight by the defendant who had not submitted the expert opinion procedure finding, which was in his favour, to the court within the lawsuit response.
Referring to the importance of the expert witness’s license, the Appeal Court and the Supreme Court accept that the last expert opinion procedure was performed at a time when the expert witness had no license, i.e. the license expired and he did not request for its extension. Nevertheless, in such case, the previous expert opinion procedures were accepted – the expert witness had his license, whereas this additional expert opinion procedure was only performed to complement and explain the previously prepared written finding and not to create a new one.
It is groundless why this statement given by the courts is not clear. Namely, in this specific case, the expert witness neither complemented nor explained the already given finding, right on the contrary – he gave expert opinion finding which is totally opposite from the first one. Instead of giving his expertise on the two illegible letters, he gave expertise on the full signature. Higher courts based their verdict exclusively on this new expert opinion procedure, which means this can hardly be a complement much less an explanation of the previously given opinions.
While performing this procedure, the expert witness had no license because it had expired and he did not request for its extension. The higher courts acceptance that the expert witness’s name was included in the records and this being the reason they consider his license as an orderly one is questionable. My opinion is that this record registry is not relevant regarding the question of whether someone owns an orderly license or not, simply because the records and the registry are a changeable category which might not be updated due to several factors and I consider there is no need that those should be stated here. In the letter itself, prepared by the Ministry of Justice, it was stated that the registry was conducted electronically and all the alterations are recorded electronically as well, including the registry’s updates.
It is not clear why this expert witness had not been deleted from the records and the registry when his license expired and the license extension was not requested. Records can hardly be accepted as criterion when discussing whether an expert witness owns an orderly license or not.
Article 27 of the Law on expert opinion procedure states that the expert opinion procedure license terminates if the expert witness him/herself requests so, if the expert witness deceases or if the license expires according to article 19, paragraph 4 of the law unless it is not extended. The same law states that the license is issued with validity of five years and it can be extended on the basis of submitted request on license extension to the Ministry of Justice two months at the latest before its expiry date of five years.
According to this, the law clearly specifies when the license expires and that refers to its own time flow even though its extension has not been requested in this specific case, the validity of five years has expired and the expert witness has not requested for an extension.
The expert witness presence in the records and in the registry is not a criterion and the law does not provide for the validity of the license.
At the counselling of all Appeal Courts held on April 13th 2018 in Skopje, a conclusion was drawn that at the time of preparing an expert witness finding and opinion, as well as appointing an expert witness, the expert witness can only perform his expertise if he owns a license and if he is enrolled in the expert witness registry.
At the working meeting of the Appeal Courts in RNM in relation to equating the legal practice, held on April 10th 2019 in Gostivar, a unanimous conclusion has been passed that at the moment of performing an expert opinion procedure, the expert witness is obliged to have a valid license irrespective of his/her enrollment in the list of expert witnesses.
From the above stated, it can be emanated that only the law on expert opinion procedures determines whether an entity owns a valid license or not, and if that validity has terminated, irrespective of the fact that the expert witness is enrolled in the recorded lists of expert witnesses.
This document is prepared by Vladimir Atanasov, a judge in retirement at the Supreme Court of RNM, judge of a long-standing career starting from the Court of First Instance in Bitola, leading to the District Court and the Appeal Court in Bitola, and then ending his career at the Supreme Court of the RNM.
Long-standing educator at the Academy for judges and public prosecutors
One term of office as a deputy president of the Macedonian Judges Association
Two study visits at the Court of Human Rights in Strasbourg
Member of the commission for preparing the methodology for the evaluation of judges
REFERENCE SOURCES
Law on inheritance
Law on obligation relations
Law on expert opinion procedure
Inheritance Law textbook by Dejan Mickovikj, PhD, Angel Ristov, PhD, and Elena Ignjatovska, PhD