Claims for recognition of the heir as unworthy and removal from inheritance
Jurisdiction.
Claims for recognition of the heir as unworthy and removal from inheritance are considered by the courts in accordance with the third part of Article 31 of the CPC (exclusive jurisdiction) – at the place of opening the inheritance.
Definition of the legal relations of the parties and the law to be followed.
The legal relations of the parties in cases of this category arise from the application of the norms of Chapters 57 - 60 of the Civil Code, the Law "On Notaries" and are determined based on a set of data: the subject and basis of the claim, the defendant's objections to the claim, and other circumstances of legal importance for the proper resolution of the case.
The subject of the dispute is actions (inaction) the defendant, which are the basis for recognizing him as an unworthy heir and removing him from inheritance.
The basis of the claim submitted to the court is the factual circumstances stated in the claim, indicating the existence of grounds for removing the defendant from inheritance.
Persons involved in the case.
The plaintiff in cases of recognition of the heir as unworthy (removal from inheritance) is only the heir according to the law. The heirs of the will cannot apply to the court with this claim.
The defendant is an heir who has committed acts attesting to his acceptance of the inheritance, or who has received a certificate of inheritance by law or by will, and whose actions fall under the provisions of paragraphs 1 to 3 of Article 1045 of the Civil Code.
The notary who issued the inheritance certificate and other possible heirs may act as third parties.
Facts to be established and proved, evidence and proof
The subject of the evidence includes the following facts:
- the fact of opening an inheritance;
- circle of heirs;
- hereditary mass;
- ownership of the property to the testator;
- the presence or absence of a will, a certificate of inheritance;
- the presence of persons entitled to a mandatory share in the inheritance;
- actual taking over;
- the existence of a waiver of inheritance on the part of one of the heirs;
- the existence of grounds for depriving a citizen of the right of inheritance;
- other circumstances.
The circumstances serving as the basis for the removal of unworthy heirs from inheritance are established by the court.
Paragraphs 1-3 of Article 1045 of the Civil Code contain an exhaustive list of persons whom the legislator recognizes as unworthy heirs, namely:
- persons who intentionally took the life of the testator or any of the possible heirs or made an attempt on their lives have no right to inherit either by will or by law (the exception is persons in respect of whom the testator made a will after the attempt on his life was made);
- persons who intentionally prevented the testator from exercising his last will and thus contributed to the vocation of themselves or persons close to them to inherit or increase their share of the inheritance are also not entitled to inherit either by will or by law.;
- parents are not legally entitled to inherit after children in respect of whom they have been deprived of parental rights and have not been restored to these rights by the time the inheritance was opened, as well as parents (adoptive parents) and adult children (adopted children) who have evaded the duties assigned to them by law for the maintenance of the testator.
The following legally significant conditions for the removal of heirs from inheritance should be highlighted:
1) the actions of the heir must be unlawful in relation to the testator or other heirs;
2) the actions of the heir must be intentional in relation to the testator or other heirs;
3) the actions of the heir must be directed against the testator or other heirs;
4) through his actions (direct or indirect), the heir tried to promote his vocation to the inheritance or increase his share in the inheritance.
The legislator does not indicate the specific types of crimes for which a conviction may entail recognizing a person as an unworthy heir, however, based on the rule of law, such criminal acts may include attacks on the life of the testator and on his health. In other words, a person may be recognized as an unworthy heir both in the case when he commits the murder of the testator or other possible heirs (or an attempted murder of these persons), and in the case when the person harms the health of the testator or other possible heirs as a result of the attempted murder.
At the same time, the motives and goals of committing such criminal acts by unworthy heirs are not taken into account, as well as the onset of the corresponding consequences.
In practice, the presence of unlawful, intentional actions of the heir against the testator, confirmed by a verdict or a court decision that has entered into legal force, entails the recognition of the heir as unworthy. An unworthy heir is also recognized as a person who has committed unlawful, intentional acts against the testator, but in respect of whom criminal prosecution has been terminated on non-rehabilitating grounds (for example, because such an heir committed suicide).
In practice, there is no uniform approach to the situation when persons who are heirs commit systematically illegal, intentional acts against the testator, which first entail a mild or moderate degree of loss of health by the testator, and eventually lead to his death (that is, they are the cause of the death of the testator).
In all cases where there are systematic illegal, intentional actions of the heir against the testator, recorded in relevant legally binding documents, which ultimately result from the death of the testator, the courts need to apply the norms of Article 1045 of the Civil Code and recognize such heirs as unworthy.
It is necessary to distinguish between actions directed against the implementation of the last will expressed in the will and actions violating the freedom of the will. The first can be committed only after making a will (for example, forcing a change in the will or to renounce the inheritance in favor of an unworthy heir). The freedom of probate is violated by actions that result in the will of the testator being distorted or incorrectly formulated (for example, making a will under the influence of deception).
The heir is recognized as unworthy regardless of whether he committed illegal acts in his own interests or in the interests of other heirs.
Persons who have committed socially dangerous illegal acts under the age of 14 in a state of insanity (when the person was not aware of the actual nature of their actions and/or did not direct them) or passion are not recognized as unworthy heirs.
The heir loses the right to inheritance only when the circumstances that are the basis for removal from inheritance are confirmed by a court verdict in a criminal case or a court decision in a civil case.
Unworthy heirs cannot inherit either by law or by will, including heirs who are entitled to a mandatory share.
The property received by an unworthy heir by inheritance is unreasonably acquired.
A person who does not have the right to inherit or who has been removed from inheritance is obliged to return all the property unreasonably obtained by him from the inheritance, and if it is impossible to return it, to reimburse its market value.
The rules of Article 1045 of the Civil Code also apply to testamentary refusal (Article 1057 of the Civil Code).
In the event that the subject of the testamentary waiver was the performance of certain work for an unworthy beneficiary or the provision of certain services to him, the latter is obliged to reimburse the heir who executed the testamentary waiver for the cost of the work performed or the service rendered to him.
The list of the main documents attached to the statement of claim
In accordance with the requirements of the first part of Article 149 of the CPC, including documents confirming the circumstances on which the plaintiff bases his claims.:
- certificate of inheritance rights;
- death certificate of the testator;
- evidence confirming the relationship and establishing that the plaintiff is an heir according to the law;
- documents on the ownership of inherited property to the testator (title documents for immovable property, certificate of registration of vehicles; certificates of registration authorities; certificates of pension savings and bank deposits, etc.);
- inventory of inherited property and reports (certificates) on its valuation;
- a verdict or court decision that has entered into legal force, indicating the existence of grounds for removal from inheritance;
- other documents
Laws to be applied in the consideration and resolution of cases
Civil Code (Chapters 57-60).
The Law of July 14, 1997 "On Notaries".
Normative Resolution of the Supreme Court of June 29, 2009 No. 5 "On certain issues of the application of inheritance legislation by courts".
Order of the Minister of Justice dated January 31, 2012 No. 31 "On Approval of the Rules for performing Notarial Acts by Notaries"
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