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22.11.2023

Inheritance under martial law: judges of the Supreme Court highlighted current judicial practice

Judges of the Supreme Court in the Cassation Civil Court Yevhen Petrov and Vasyl Krat joined the online workshop on “Inheritance under martial law: notarial practice and the practice of the Supreme Court.”

Judge of the Supreme Court of the Supreme Court Yevhen Petrov analyzed the relevant practice of the Grand Chamber of the Supreme Court.

Thus, during the consideration of case No. 523/2357/20, the Court had to give answers to questions regarding the application of the provisions of Articles 1281, 1282 of the Civil Code of Ukraine at the stage of enforcement of the court decision in the event of the death of the debtor, in particular: whether procedural succession in enforcement proceedings is possible in such a case and what is the procedure for applying Art. 1282 of the Civil Code of Ukraine regarding the determination of the limits of the heirs’ liability and the procedure for meeting the debt collector’s demands at the stage of enforcement of the court’s decision.

The VP of the Supreme Court came to the conclusion that in this case procedural legal succession is admissible. In addition, in the event of the debtor’s death, the court must find out all the heirs of the deceased and establish whether the creditor has made claims against them.

The judge also drew attention to the decision of the Supreme Court of Justice of July 4, 2023 in case No. 570/3891/14, in which the Supreme Court of Justice pointed out that ch. 1 Art. 523 of the Civil Code of Ukraine does not apply to cases of replacement of the debtor during inheritance, and has departed from the previously formed position on this issue.

Highlighting the issue of determining the jurisdiction of the case in the event that the dispute is equally related to corporate and hereditary relations, the aspects of which are also interconnected in view of the stated claims, Yevhen Petrov reminded that everything depends on the definition of the content of the disputed legal relations , namely, what kind of legal relationship exists between the parties: family, inheritance or corporate.

During the lecture, the judge also considered the issue of the appropriate way to protect the interest of the territorial community in receiving inherited property in the event that the inheritance was transferred to the heir on the basis of a court decision, which was later canceled, but such inheritance was already alienated by the heir to another person (the resolution of the Supreme Court of December 14, 2022 in case No. 461/12525/15-ts).

In addition, Yevhen Petrov analyzed the resolution of the Supreme Court of Ukraine dated May 25, 2021 in case No. 522/9893/17, which deals with the recognition of the nullity of a will in the event of its notarization by a notary outside the notary district.

In the resolution dated June 23, 2020, in case No. 179/1043/16-ts, the Grand Chamber of the Supreme Court determined the procedure for inheriting the right to permanent use of a land plot granted for the management of a peasant (farm) economy, and came to the conclusion that since after the state registration of the peasant ( farm) farm as a legal entity, the right to permanent use of the land plot granted to the founder for the management of such farm is acquired by the latter, then the death of the founder does not give rise to his heirs the right to inherit the right to permanent use of the land plot, which the founder received for the management of the specified farm and created (registered) him.

Finally, Yevhen Petrov explained who can initiate the termination of the inheritance contract using the example of the decision of the OP of the Supreme Court of Ukraine dated April 10, 2023 in case No. 591/1419/20.

Yevhen Petrov’s presentation is available at the link: https://is.gd/e815fe .

Vasyl Krat , a judge of the Supreme Court of the Ukrainian Central Committee, gave a lecture on “Categories of inheritance law”, during which he spoke about the right to a will and the principle of freedom of will. He reminded that the right to a will can be exercised during a person’s lifetime and includes both the right to make a will or several wills, and the right to change or cancel them. All the above powers of the testator together with the means of their legal protection and protection are the realization of the freedom of the will, which is the principle of inheritance law. The freedom of the will covers the testator’s personal exercise of the right to a will through free expression of will, which, being properly expressed, is subject to legal protection even after the death of the testator. The freedom of a will as a principle of inheritance law implies, among other elements, the need to respect the will of the testator and the obligation to fulfill it (the decision of the Supreme Court of the Supreme Court of July 20, 2022 in case No. 461/2565/20).

The speaker noted that the qualification of the will as invalid is due to the expanded understanding of the requirements for the form and procedure of its certification, which are mentioned in part. 1 Art. 1257 of the Civil Code of Ukraine, violates the principle of freedom of will.

The judge also explained how to act in cases where the testator lived outside of Ukraine at the time of death and the inheritance includes rights to immovable property located on the territory of Ukraine. In general, the inheritance procedure in Ukraine is regulated by the norms of the Central Committee of Ukraine, but in the presence of a foreign element, the norms of the Law of Ukraine “On International Private Law” apply to such legal relations. In this case, the acceptance of the inheritance takes place by the heir’s application to the competent body authorized to perform notarial acts at the location of the immovable property in Ukraine.

Vasyl Krat also pointed out other problematic issues that arise in inheritance relations and concern, in particular, the rules for calculating and stopping the term, delimiting the scope of Art. 1264 of the Central Committee of Ukraine and Art. 74 of the Civil Code of Ukraine, application of the statute as a regulator of inheritance relations, etc.

In addition, the judge cited examples of international and national judicial practice in cases related to the inheritance of rights and obligations of individuals, and using the example of the practice of the Supreme Court of Justice analyzed the difference between inheritance by will and testamentary dispositions.

The speaker also drew attention to the qualification of a will as invalid, a will that was not signed, certification of a will outside the notary district, as well as the consequences of the presence / absence of the secretary of the village council (executive committee of the village council) of powers to perform notarial acts and late registration of the will in the inheritance register registry

During the lecture, the judge also highlighted the rule of interpretation favor contractus ( favor negotii ) – interpretation of the deed in favor of validity, according to which doubts about the validity, validity and enforceability of the contract (deed) should be interpreted by the court in favor of its validity, validity and enforceability.

Separately, Vasyl Krat commented on the practice of considering cases related to the interpretation of the will (resolution of the Supreme Court of Ukraine dated February 23, 2022 in case No. 474/454/18), competition of wills (resolution of the Supreme Court of Ukraine dated June 26, 2019 in case No. 369/3186/ 17), and explained in which cases the validity of the previous will can be restored.

At the end of the lecture, Vasyl Krat reminded about the basic principles of inheritance by law, namely, that the principle of succession is the basis of inheritance by law, which consists in establishing the priority of the rights of some heirs by law over others. At the same time, each queue is a defined circle of persons, taking into account the degree of their closeness to the testator, which is established by law on the basis of the assumption that the testator would leave his property to the closest relatives, family members, dependents and (or) other relatives up to the sixth degree kinship

The judge also considered issues such as the impact of adoption on inheritance and inheritance by right of representation.

Vasyl Krat’s presentation is available at the link: https://is.gd/xxdPyM .

The online workshop was organized by the legal portal “Ratio Decidendi”, the magazine “Law of Ukraine” and the Office of Independent Expertise.

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