Hereditary disputes

Usually, inheritance disputes arise directly on the heels of family passions after the recent death of a relative, when the negative psychological background and contradictory information available on inheritance do not contribute to an adequate analysis of the situation. And it happens that the person entitled to the inheritance did not refuse it, but did not accept it either - and this was timely taken advantage of by heirs of more distant lines or even unauthorized persons, who took possession of fictitious documents.

Today it is even difficult for us to imagine a situation from the past, when, according to Article 1 of the Decree of the Council of People's Commissars of the Ukrainian SSR of 11.03.1919 "On the Abolition of Inheritance", the right of inheritance, both by law and by will, to all property located on the territory of the republic was abolished - property in Soviet times was assumed and protected by law exclusively by the state.  At the same time, Roman private law, as the basis of civil law in general, paid great attention to the institution of inheritance. 

An important feature of inheritance legal relations is that one of the parties (the heir) has only the right, and the other party (the obligated person(s)) has only the obligations, which distinguishes such legal relations from the vast majority of others.

Before the testator's death, potential heirs are not entitled to challenge the owner's actions regarding the disposal of their property and the rights of third parties based on such actions - all rights arise for them only from the moment the inheritance is opened.

Unfortunately, neglect of the established procedure and procedure for taking appropriate actions in relation to inherited property can very often lead to the loss of the heirs' legal right to inheritance.  

Ways to accept the inheritance:

• actual acceptance of the inheritance by living with the testator;
• submission of an application to a notary office for inheritance.

Importance of terms and dates

The statute of limitations applicable to contesting a will and certificate of inheritance is 3 years. The period for accepting an inheritance after the testator's death is 6 months. Claims for recognition of ownership by inheritance may be filed with the court only six months after the testator's death, but notarization of inheritance may be filed before the expiration of this period.

Pursuant to Article 1268 of the CCU, it is not allowed to accept the inheritance with a condition or reservation - the heir accepts the inheritance or not in full, and therefore bears all the risks in the presence of its encumbrances (similar to Article 548 of the old Civil Code of the Ukrainian SSR of 1963).

According to Articles 1296-1297 of the CCU, the heir must apply to a notary to obtain a certificate of inheritance to real estate - the time limit for this is not limited. Today, banks sometimes initiate such amendments to the CCU in order to recover loan debts on inherited property that the debtor's heirs intentionally do not register in their names, and the creditor has the right to demand repayment of the testator's debt (Article 1282 of the CCU).

However, the absence of a certificate of inheritance is not a ground for refusing to initiate court proceedings.

Features of the inheritance agreement

Article 1302 of the Civil Code of Ukraine stipulates that under an inheritance agreement, one party (the acquirer) undertakes to comply with the orders of the other party (the alienator) and, in the event of his death, acquires ownership of his property. The rules of inheritance law do not apply to inheritance under the contract (including the right to a mandatory share, and the transferee under the inheritance contract is not liable for the obligations of the alienator). The inheritance agreement may be terminated by the court at the request of the alienator if the transferee fails to comply with his orders. All of this indicates that the inheritance agreement is subject to the rules of law of obligations rather than inheritance law.  

It is well known that laws do not have retroactive effect (except when they cancel or mitigate an act). Therefore, it is necessary to take into account such a point as the moment of opening the right to inheritance and whether certain legal relations are subject to the provisions of the 2003 CCU, since the old Civil Code was in force until January 1, 2004. For example, the old Marriage and Family Code (unlike the new Family Code) did not provide for the emergence of joint property of spouses in the event of a man and a woman living together as a family without registering a marriage - it is impossible to talk about inheritance in the event of a civil marriage at that time. Article 74 of the FCU can only be applied to property acquired by the family after January 1, 2004, and not to property acquired before that time. This also applies to court decisions made after January 1, 2004, establishing the fact of acceptance of the inheritance that was opened before the new CCU of 2003 entered into force.

It is often necessary to analyze the facts or evidence of acceptance of the inheritance, consent or disagreement of other heirs, the existence of a refusal to perform a notarial act, etc. - usually, 15-20% of claims in inheritance disputes are subsequently left without consideration or proceedings are closed due to the withdrawal of the claim simply due to inattention during its preparation. In other words, unlike other industries, the specifics of inheritance cases require exhaustion of out-of-court remedies.

In order to protect one's inheritance rights, the inheritance must be accepted, and recognition of inheritance rights in court is possible only if there is a notary's decision to refuse to perform a notarial act. Today, the court practice applies the explanations of the resolutions of the Plenum of the Supreme Court of Ukraine dated 30.05.2008  No. 7 "On judicial practice in inheritance cases and "On judicial practice in consideration of civil cases of inheritance" dated May 16, 2013, No. 24-753/0/4-13: "if the absence of conditions for obtaining a certificate of inheritance from a notary's office is not confirmed by proper evidence, namely, the notary's refusal to issue a certificate of inheritance, this may be grounds for dismissal of the claim."

Part 2 of Art. 1272 of the CCU states: "with the written consent of the heirs who have accepted the inheritance, an heir who has missed the deadline for acceptance may submit a corresponding application to the notary office at the place of opening the inheritance". In practice, however, there are claims by heirs to establish an additional period for acceptance of the inheritance, while the heir and the testator lived and were registered together at the time of the latter's death, meaning that the heir has actually accepted the inheritance - in this case, there is no need to go to court.

Additional guarantees of protection of inheritance rights under the Civil Code of Ukraine from 01.01.2004

• the possibility of drawing up a joint will by the spouses;
• the possibility of certifying a will not only by notaries, but also by other officials and officers;
• certification of a secret will (but sometimes the lack of access to a notary causes the will to be drawn up with errors, and after the death of its author, disputes arise); 
• the right of the testator to set personal instructions in the will (a will with a condition);
• limitation of the principle of freedom of will by the institution of compulsory heirs, which protects the interests of children, disabled parents, widow (widower), and adult disabled children of the testator.

Our lawyers are ready to help you resolve any disputes regarding inheritance by applying the following remedies (Article 16 of the Civil Code of Ukraine)

• recognition of the right to inheritance;
• invalidation of a transaction (will, inheritance contract, life care contract - sometimes, in order to exclude from inheritance an heir who is entitled to a mandatory share by law, a life care contract or an inheritance contract is concluded instead of a will)
• termination of an infringing action as a way to secure a claim;
• restoration of the situation that existed before the violation (restitution);
• enforcement of the obligation in kind (in case of inheritance by will with a condition - transfer of specific things to certain persons, the right to live in the inherited house, etc;)
• change or termination of legal relations;
• compensation for damages and other means of compensation for property and non-pecuniary damage;
• declaring illegal actions or inaction of a public authority or local self-government body.

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