Vasyl Krat, judge of the Civil Court of Cassation as part of the Supreme Court, said this at a lecture for judges, lawyers, and lawyers entitled "Inheritance disputes: the practice of the Supreme Court."
He noted that nowadays lawyers ask many questions about inheritance relations in the conditions of martial law: regarding additional terms for accepting inheritance, the specifics of legal succession, etc. Cases with relevant issues have not yet reached the Supreme Court, and Vasyl Krat is cautious about expressing his own opinions on certain issues, as relevant disputes may be considered by the board of which he is a member. At the same time, the judge noted that the Supreme Court's legal positions will be made public on the Court's official information resources.
The speaker divided his report into blocks (see presentation):
- principles of inheritance law;
- general categories of inheritance law;
- inheritance (asset, liability);
- testamentary inheritance and testamentary dispositions;
- inheritance by law;
- acceptance and registration of inheritance;
- protection in inheritance law.
Vasyl Krat noted that the principles and doctrine of private law are applied when considering inheritance disputes. Certain principles have a normative expression (in particular, in Article 3 of the Central Committee of Ukraine). These principles in one way or another affect law enforcement practice, and cases are decided on their basis.
One of these principles is the freedom of the will (one can make one or several wills, change it, cancel it, etc.). In the resolution of the Supreme Court of Justice dated July 20, 2022, in case No. 461/2565/20, it is stated that the freedom of a will includes the need to respect the will of the testator and the obligation to fulfill it. Therefore, it is not possible to expand the grounds of invalidity of the will in the context of requirements regarding its form and certification. The court concluded that only if the testator has a physical disability that prevents him from reading the will, the will is certified in the presence of witnesses.
One of the principles of private law in general is reasonableness. It is used to assess the behavior of legal subjects, and to interpret norms, etc. The speaker noted that the Supreme Court has recently been actively applying this principle in its practice. He drew attention to the resolution of the Supreme Court of Ukraine dated June 16, 2021 in case No. 554/4741/19, which directly draws attention to how, based on the principle of reasonableness, the beginning of the period for accepting inheritance should be calculated – from the day after the death of a person or declaring her dead.
Vasyl Krat gave examples from the practice of resolving disputes of various categories regarding inheritance law: regarding the influence of inheritance on the retention / non-retention of mortgages, regulation of inheritance relations in the statute, the importance of the place of opening of inheritance; singular legal succession, etc. In particular, he drew attention to the decision of the Supreme Court of Ukraine dated July 13, 2022 in case No. 755/17978/20, which concluded that it is impossible to remove from the right to inherit a person who died at the time of filing the corresponding lawsuit, since his civil legal capacity has already stopped
The speaker noted that inheritance includes assets and liabilities (rights and obligations). He drew attention to the fact that in 2003 the Central Committee of Ukraine changed the approach to inheritance – since then it is not about inheriting, for example, a house, but ownership rights to it. In the resolution of the OP of the Supreme Court of Ukraine dated February 14, 2022, in case No. 243/13575/19, a conclusion was drawn regarding the inheritance of the right to insurance benefits that were assigned but not paid to the testator during his lifetime.
Vasyl Krat also cited judicial practice regarding the inheritance of the right to compensation for moral damage; the obligation to compensate property damage (damages); regarding what rights are inherited in the field of intellectual property (allowed only for property rights), etc.
He drew attention to the resolution of the Supreme Administrative Court of Ukraine dated October 7, 2020 in case No. 450/2286/16-ts regarding the inheritance of the right to challenge a document or legal fact. It concluded that if the testator during his lifetime expressed directly or made it clear by his behavior that he would not exercise his right to contest, then this would contradict his previous behavior.
In the block "Inheritance by will and testamentary dispositions", Vasyl Krat first of all drew attention to the fact that a will and other testamentary dispositions should be distinguished (see the resolution of the Supreme Court of Ukraine dated May 10, 2018 in case No. 497/1870/16-ts). So, he noted, there may be some competition between such an order and a will. The speaker cited case law as to what rights may be covered by a will; regarding competition of wills; places of making a will; interpretation of the will; its certification outside the notary district (this is not a reason to recognize it as invalid), etc.
In the block "Inheritance by law", the speaker talked about the essence of such inheritance, cited the table of kinship of persons in the context of determining the sequence of the right to inheritance, noting that the spouses are not relatives, since there were family relations between them.
In the decision of June 20, 2018, in case No. 643/1216/15-ts, the CCS of the Supreme Court indicated that the degree of kinship is determined by the number of births that separate the relative from the testator. The birth of the testator himself is not included in this number. The degree is a kind of unit of measurement of kinship between relatives by origin. It provides an opportunity to establish "distance" between related persons (relatives by origin).
In the resolution of the Central Committee of the Supreme Court dated March 23, 2021, in case No. 643/14592/18, a conclusion was drawn on the legal facts necessary for inheritance under the law. Yes, there must be clearly defined legal facts confirming the existence of: family relations (a certain degree of kinship with the testator); quasi-family relations (adoption of an heir or testator); family relations (marriage with the testator; living with the testator in the same family for at least five years before the opening of the inheritance); maintenance relations (remaining dependent on the testator by the heir for at least five years before the opening of the inheritance).
Vasyl Krat cited judicial practice regarding the acceptance and registration of inheritance, in particular: the consequences of missing the deadline for its acceptance; unconditional acceptance of inheritance; refusal to accept inheritance.
He also emphasized that private law does not provide for the invalidity of the certificate of the right to inheritance. The Central Committee of Ukraine enshrines only the possibility of filing a claim for invalidation of the certificate of the right to inheritance. Any person whose civil rights or interests have been violated by the issuance of a certificate of the right to inheritance may file a claim for invalidation of the certificate of the right to inheritance. That is, disputing the certificate of the right to inheritance takes place only at the initiative of the interested person by filing a claim to declare it invalid (suit for disputing the certificate). The claim to contest the certificate is subject to the statute of limitations (decision of the OP of the Supreme Court of Ukraine dated September 5, 2022 in case No. 385/321/20).
In addition, he spoke about other aspects of protection in inheritance law using the example of the practice of the Supreme Court.
The lecture was held as part of the workshop "Inheritance law: legal doctrine, practice of the ECtHR and the Supreme Court" organized by the legal portal "Ratio Decidendi" and the magazine "Law of Ukraine".
Vasyl Krat's presentation – https://bit.ly/3D3utXJ .