The legally prescribed form for drawing up the will is an essential condition for the validity of the will.
This is because the will will be fulfilled only after death of the testator, so that the strict form of the will provides the only guarantee that it will be consistently respected the true will of the testator.
The Law on Inheritance of the Republic of North Macedonia provides for the following forms of wills: testamentary, judicial, diplomatic-consular, international, military and oral.
Hence, unlike comparative law where the form of the notarial will is widely accepted, the Inheritance Law of the Republic of North Macedonia, as lex generalis does not recognize the notarial will.
Although, in the Inheritance Law of the Republic of North Macedonia, as lex generalis, the notarial will is not foreseen, this institution is not unknown to our legislation because the Law on the Notary of the Republic of North Macedonia foresees the possibility for the Notary as a trustee of the court to draw up a will in form of notarial deed.
The Law on the Notary provides that the will in the form of a notarial deed is drawn up according to the provisions that apply to drawing up a judicial will contained in the Law on Inheritance.
Hence, the notarial will is drawn up by a notary acting in the area of a competent basic court in the form of a notarial deed at the behest of the testator.
First of all, the Notary is obliged to check the identity of the testator. It can be established by the Notary when he knows the testator personally. Furthermore, identity can be determined by the statements of at least two adults witnesses whom the Notary knows personally or has confirmed their identity based on identification documents (passport, identity card, etc.). The identity of the testator also can be determined with the testimony of only one witness, if the testator possesses a public document that can be used to determine his identity. Apart from the identity of the testator, the Notary is obliged to determine the identity of the so-called witnesses of the testator. Despite the fact that the method of determining the identity of the testator is an initial action in the procedure, however, this initial action is significant.
After establishing the identity, the Notary is obliged to verifies whether the testator is testamentary capable, i.e. to determine whether he is capable of understanding the factual and legal meaning of their actions and the legal consequences they caused they cook. In that direction, the Notary should make sure that the testator freely, without coercion or threat, gives his statement to the next will aware of the consequences it will cause.
After the Notary is convinced of the testamentary capacity of the testator and that he gives his statement of will freely, with a clear conscience and common sense, begins to compile the minutes according to the testator’s instructions. In that sense, the Notary writes down and records the testator’s words, while the most important thing is that the will of the testator is recorded on the most adequate way, that is, the written text should be an authentic expression of the will of the testator.
During the procedure for drawing up the will in the form of a notarial deed, the notary is also obliged to teach the testator about his rights, but also obligations in relation to the right to a necessary inheritance, which belongs to the necessary heirs.