On invalidation of certificates of inheritance rights and division of inheritance property
Jurisdiction.
Claims for recognition of the certificate of the right to inheritance as invalid are considered by the courts according to the general rules of claim proceedings – at the place of residence of the defendant.
If the claim is related to a dispute over the right to immovable property, then it is considered at the location of this property.
Claims for the division of inheritance are considered according to the general rules of claim proceedings at the location of the immovable inherited property included in the estate. If the estate does not include immovable property, the case is considered at the defendant's place of residence.
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 4, 11, 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 (not) legality of the disputed inheritance certificate
The basis of the claim submitted to the court is the factual circumstances stated in the claim, the rights and legitimate interests of the plaintiff violated by the disputed certificate. At the same time, the indication by the plaintiff of a specific legal norm in support of the claim is not decisive when deciding by the judge which law should be followed in resolving the case.
Persons involved in the case.
The plaintiff in the claims for recognition of the certificate of the right to inheritance as invalid may be a person whose inheritance rights have been violated by the disputed certificate and for whom recognition of the certificate as invalid entails his calling to inheritance, as well as persons whose property rights have been violated when issuing the certificate of the right to inheritance (surviving spouses in case of dispute, other persons disputing ownership of a part of the inherited property).
The defendant(s) may be the person(s) in whose name the inheritance certificate has been issued.
A third party may be a notary who has issued a certificate of inheritance.
The following persons may require recognition of a certificate of inheritance right:
- heirs who have received, together with the defendants, a certificate of inheritance rights, but do not agree with this certificate and consider it invalid due to the inclusion of persons who did not accept the inheritance, or for other reasons.;
- heirs who have submitted to a notary or an official authorized to issue a certificate of inheritance, an application for acceptance of the inheritance or for the issuance of a certificate of inheritance, but have not received it, whereas it has been issued to other heirs and, in the opinion of the plaintiff, it is invalid;
- heirs who have missed the deadline for accepting the inheritance, who have applied to the court with a claim for restoring the deadline for accepting the inheritance, recognizing them as having accepted the inheritance and recognizing the certificate of inheritance rights issued to other heirs as invalid.
The plaintiffs for the division of property can be both heirs who have accepted the inheritance, and heirs who missed the deadline for accepting the inheritance and appealed to the court with simultaneous demands for the restoration of the deadline for accepting the inheritance and for the division of the inheritance.
The defendants in such claims may be heirs who have accepted an inheritance both on the basis of obtaining a certificate of inheritance rights and without receiving it, but who have submitted an application to a notary within six months.
In the case of division of hereditary property between heirs, among whom there are minors, incapacitated or with limited legal capacity, the court is obliged, in order to ensure the protection of their legitimate interests, to involve their legal representatives, guardians, trustees, as well as guardianship and guardianship authorities in the case.
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;
- succession order;
- 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 to inherit;
- other circumstances.
A certificate of inheritance may be declared invalid by a court (both in whole and in part) at the request of a person whose inheritance rights have been violated by this certificate.
If a certificate of inheritance is issued to one heirs who have concealed from the notary the presence of other heirs who have not renounced the inheritance and are not deprived of the right to inherit, the latter have the right to apply to the court with a claim for invalidation of the certificate of inheritance in the part that would have been due to them if they had been called to inherit.
When considering disputes about the invalidation of an inheritance certificate, the courts must bear in mind that, according to Article 1044 of the Civil Code, heirs by will and by law may be citizens who are alive at the time of the discovery of the inheritance, as well as those conceived during the testator's lifetime and those born alive after the discovery of the inheritance.
Examining the legality of the disputed certificate of inheritance, the courts must verify compliance with the requirements of Articles 1061-1064 of the Civil Code on the order of vocation to inheritance, that is, whether the procedure established by law for the order of vocation of heirs to inheritance has not been violated when issuing a certificate of inheritance.
The grounds for recognizing the certificate of inheritance as invalid may be:
- issuance of the certificate before the expiration of the six-month period, if there are other legitimate heirs.;
- issuance of a certificate of the right to inheritance under a will without allocation of shares of the surviving spouse or persons entitled to a mandatory share;
- issuance of a certificate of the right to inheritance under a will, which has been violated in the preparation, signing and certification of the law and which is also subject to invalidation;
- issuance of a certificate of inheritance to some heirs who have concealed from the notary the presence of other legitimate heirs who have filed a claim to restore the deadline for accepting the inheritance that was missed for good reasons, recognizing them as having accepted the inheritance, determining the inheritance shares and declaring the certificate of inheritance invalid;
- according to the claim of the heir, whose refusal of inheritance was declared invalid by the court;
- for other reasons.
When considering claims by a surviving spouse for recognition of a certificate of inheritance on the grounds of violation of his right to a share in the joint property of the spouses, the courts must bear in mind that if the deceased's property was acquired during a registered marriage with the surviving spouse, then the latter, in addition to inheritance rights, also has the right to a part of jointly acquired during the period of property damage. In such cases, the share of the deceased spouse in the joint property of the spouses is included in the inheritance. The joint property of the spouses arises by virtue of a direct indication of the law. The property acquired by the spouses in a registered marriage is their joint property, regardless of in whose name it is registered.
The inclusion of a share in the right of common ownership of the property belonging to the surviving spouse in the estate after the death of the other spouse is the basis for recognizing the certificate of inheritance as invalid due to a violation of the rights of the surviving spouse. The surviving spouse has the right to demand the allocation of his share in the common property of the spouses on the basis of the issuance of a certificate of ownership, and only the remaining (other half) part of the property can be included in the estate. In accordance with the Law "On Marriage (Matrimony) and Family" and civil legislation, property is jointly owned by the spouses if the following conditions are met: the registered marriage of the spouses, the acquisition of property during the registered marriage.
According to the rules of Article 1076 of the Civil Code, any of the heirs who have accepted the inheritance has the right to demand a division of the inheritance, if no agreement is reached, the division of the inheritance is carried out by the court in accordance with the shares due to them.
A claim for the division of inherited property can be brought to court both after receiving a certificate of inheritance rights and before receiving it.
In cases where the entire inheritance or part of it is bequeathed to heirs in shares without specifying a specific property, any of these heirs also have the right to claim the inherited property.
The division of the inheritance property may be carried out by the heirs by mutual agreement in accordance with the shares indicated in the certificate of inheritance right. If an agreement is not reached, the inheritance is divided in court.
The courts need to keep in mind that according to Article 1040 of the Civil Code, the inheritance includes property belonging to the testator, as well as rights and obligations, the existence of which does not cease with his death. The inheritance does not include rights and obligations that are inextricably linked to the identity of the testator.:
1) the rights of membership in organizations that are legal entities, unless otherwise established by legislative acts or an agreement;
2) the right to compensation for damage caused to life or health;
3) rights and obligations arising from alimony obligations;
4) the rights to pension payments, allowances and other payments based on labor legislation and laws in the field of social security;
5) personal non-property rights not related to property rights.
The composition of the inherited property is checked by a notary according to the documents submitted by the heirs, however, if such data is not available in the inheritance file, the court establishes it on the basis of title and crediting documents for the property, as well as securities, monetary documents, etc., belonging to the testator.
When dividing inherited property, the courts must bear in mind that, in accordance with Article 1078 of the Civil Code, heirs who lived with the testator during the year before the opening of the inheritance have a preferential right to inherit housing, as well as household utensils and household items.
Heirs who, together with the testator, possessed the right of common ownership of the property, have the pre-emptive right to inherit the property that was in common ownership.
The list of the main documents attached to the statement of claim
In accordance with the requirements of Article 149 of the CPC (see paragraph 1), 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 belongs to the heirs according to the law or will (marriage certificates, birth certificates, adoption certificates or paternity certificates;
- a certificate from the address bureau or a house book to confirm the fact of the dependent's residence with the testator;
- a certificate from the medical and social expert commission (hereinafter referred to as the ICEC) on disability, a copy of the court's decision on establishing the fact of kinship, a will, etc.;
- 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;
- the act of the competent commission or the conclusion of the construction expertise on the technical possibility of dividing the real estate in kind, if it is part of the estate;
- other documents
Laws to be applied in the consideration and resolution of cases
The Constitution.
Civil Code (Chapters 4, 11, 57-60).
The Code "On Marriage (Matrimony) and the Family" Law of July 14, 1997 "On Notary".
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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