Lyudmyla Kozlovskaya,
Candidate of Law, Docent,
Scientific consultant of the High Specialized
Court of Ukraine for Civil and Criminal cases,
Senior Research Fellow
Fedir Burchak Institute for Scientific Research of Private Law
and Entrepreneurship by the National Academy of Legal Sciences of Ukraine
UDC 347.65 / 68
Additional period for acceptance of inheritance defined by the court, in
dynamic of grounds for inheritance
The article investigates the main problems of application of the law provisions in protecting the heir's right to accept the inheritance in a court order. The author concludes that definition of the additional period for acceptance of inheritance, by court in the legal part of grounds of inheritance has no independent value of title.
Keywords: succession, the inheritance, the heir, to accept an inheritance.
The procedure of the rights for inheritance has been fundamentally studied in scientific publications of Y.O. Zaika, E.O. Michurina, E.O. Ryabokon, I.V. Spasibo-Fateeva, A.P. Pechenyi, V.Y. Chuikova and others. However, the particular importance of the court's decision in determination of the additional period for acceptance of inheritance for a heir, among the set of legal facts upon which, the right for inheritance is acquired, requires a separate scientific and practical research.The aim of the article is to identify the value of the judgment determining the deadline for acceptance of inheritance in the dynamics of the inheritance grounds.
Protection of the subjective right for acceptance of inheritance is implemented through determination of the additional period for acceptance of inheritance by the court or by appealing notary's actions concerning the refusal to deliver the application for acceptance of inheritance, or issuance of a certificate of inheritance on the grounds that the heir, to the opinion of the notary, is such that refused to accept the inheritance, so has no succession right and therefore can't receive the inheritance certificate.
The subjective right of inheritance has the character of law, limited in time; it exists within the timeframe stipulated for acceptance of inheritance, which by their legal nature are terms of implementation of the right. Missing the deadline for acceptance of inheritance, means that the subjective right of inheritance was not implemented in the determined term. If the heir does not implement this right in the stipulated term, the right stops, but the said term is subject for reinstatement in court order. In this case, the protection of subjective inheritance right is performed through the judicial procedure by defining the additional period for acceptance of inheritance.
So, Art. 1270 of the Civil Code of Ukraine defines the deadline for acceptance of inheritance (hereinafter - the CC of Ukraine) as belonging to the time period of the subjective right of inheritance. For acceptance of inheritance the period of six months is stipulated, which starts from the date of opening of the inheritance. If the origin of the person’s right to accept an inheritance depends on the failure or refusal of its acceptance by other heirs, the period for acceptance of the inheritance shall be three months from the date of rejection by other heirs of the inheritance, or refusal of its acceptance. If, the remaining period is less than three months, it should be extended to three months. A short period of time has been legislatively provided for acceptance of inheritance, is one of the reasons of the large number of disputes concerning reinstatement of the period for acceptance of inheritance (Art. 3 of Art. 1272 of the Civil Code of Ukraine).
By analyzing of the experience of European countries, we can conclude, that the prevalence of "system failure" elements in the legal regulation of acceptance of inheritance, in combination with rather long periods for acceptance of inheritance promotes the judiciary to avoid most of such lawsuits. For example, Art. 789 of the Civil Code of France provides that the right to accept or refuse from acceptance of the inheritance shall be extinguished with the expiration of the period, that is required to repay the longest period of limitation of rights for immovable property. Taking into account periods with thirty, twenty, ten-year statutes of limitations (Art. 2262, 2265 of the Civil Code of France) [1, p. 296, 639], the court decision, as the tool for protection of the right to accept an inheritance naturally becomes unclaimed .
The period for acceptance or refusal from an inheritance is imperatively determined by the legislation. However, a will may stipulate another period for acceptance of inheritance. For example the establishment of heir in the will, considering the condition that the main heir should perform actions on acceptance of the inheritance within 3 months from the date of opening of the inheritance. This condition should be considered as legitimate and acceptable. Although, there are already some prerequisites of the inheritance disputes that can arise, connected exactly with interpretation of the term as an imperative. So, according to features, that legal science has developed [2. p. 247 - 258], the period for acceptance of inheritance can be described as: liable for the correctness of the calculation, imperative-dispositive period of existence (because of) this right in time.
In the classification of judicial decisions, which has been carried out by legal scholars, the court decisions concerning the acceptance of inheritance are being allocated separately. These include decisions concerning the reinstatement of the period for acceptance of inheritance and recognition of acceptance of inheritance as null and void. According to the author, a judgment of reinstatement of the period for acceptance of inheritance, acts as the legal fact of rights recovery, as it restores the lost right to accept an inheritance. It means that the right appears exactly on the basis of court decision, since the certificate of inheritance is just a documentation of its existence [3, p. 247].
Confirmation of this view could be found in the regulations of the Civil Code of the Russian Federation (hereinafter - the CC of RF) governing the acceptance of inheritance. Thus, Art. 1155 of the CC of RF, provides court with the right to reinstate the deadlines for acceptance of inheritance, if the heir did not know or should have known about the opening of inheritance, or on some other reasons have missed the deadline and in case if such a reasons will be considered by the court as a valid; so the heir may be able to apply the court during six months after disappearance of such a reason. Moreover, according Art. 1155 of the CC of the RF, court may recognize the heir as having accepted the inheritance. Applying the court already provides that the heir has the intention and the will to accept the inheritance. Thus, the Judgment of Possession can replace the Inheritance act.
In the Law of Ukraine on Legal Succession, the court's decision on reinstatement of the period for acceptance of inheritance has a fundamentally different meaning. In contrast to the practice of application of provisions of the Civil Code of the Ukrainian SSR, where the court's decision concerning extending of the period for acceptance of inheritance in accordance with the stated claims, also supposed to include the award of the inheritance property, part 3 of Art. 1272 of the Civil Code of Ukraine prescribes that for the heir, who missed the deadline for acceptance of inheritance for a valid reason, the court may determine the additional period of time, sufficient to apply for acceptance of inheritance. This means, that acceptance of inheritance couldn't be resolved prior the submission of an application for acceptance of inheritance.
According the content of Article 1272 of the CC of Ukraine, a claim for reinstatement of the period for submission of application for acceptance of inheritance should be applied in the following cases: 1) in case of a written consent of all heirs, that have accepted the inheritance, on application submitted by the heir, who missed the six months period, to the notary for acceptance of inheritance, ; 2) in case of missing of the six-month period for submission of an application for acceptance of inheritance to the notary' and in case of absence of any other heirs who accepted the inheritance and could provide a written consent on the submission of this application.
The peculiarity of disputes about definition of additional period for acceptance of inheritance, refers to the fact that even satisfaction of the claim on determination of the additional period for acceptance of inheritance, cannot be considered the solution of inheritance rights and property and inheritance disputes. The motivation part of relevant court decision, which is not mandatory, contain references on the legal status of the person submitted the request. Considering the nature of the subjective rights of inheritance, whose sense is in the authority to accept or to waive the inheritance, then at the moment of the judgment, such a right cannot be considered as the exercised, therefore awarding of a share of inheritance property would be premature. That is, the application for the reinstatement of the period for acceptance of inheritance, with simultaneous requirements for allocation of shares in the inheritance, division of the inherited property etc. Therefore, the court's determination of the additional period for submitting application for the inheritance acceptance and the simultaneous recognition by the same court decision of the right of the heir for the hereditary property, as such that does not comply with p. 3 Art. 1272 of the CC of Ukraine.
For example, Melitopol City District Court of Zaporozhye Oblast (case № 2-1351 / 2011) approved the decision, which satisfied the claim of N to P and K and executive committee of Melitopol City Council on the establishment of the additional period for acceptance of the inheritance, on recognizing the right of ownership of 21/200 part of the residential building in the order of succession.
According to Mrs. Z.V. Romovskaya the norm of p. 3 Art. 1272 of the CC of Ukraine, it follows that the additional period has a clearly defined purpose: an application for acceptance of inheritance, and therefore it cannot be used for other purposes, including targeted denial of inheritance in favour of other heirs [4, p. 220]. Other authors criticizes the possibility of restoring a single power only, such as the right to accept the inheritance. According to Mr. S. Limanskyi, it violates rights and legitimate interests of the heir. In this regard, she offers a legislative consolidation the recovery of the subjective succession right in general, that is, to provide a heir the right not only to accept the inheritance, but also to waive from it in the favour of other heirs [5, p. 348 -349].
We should agree with Y.O. Zaika and E.O. Ryabokon, indicated that the additional period for acceptance of inheritance by the heir, which has been determined by the, is a special period, which do not automatically apply rules of succession that are regulating the procedure and terms of acceptance of inheritance [6, p. 257]. Determining of the additional term is also aimed to implement a single authority of the heir, the content of which is established by p. 3. of Art. 1272 of the CC of Ukraine - submission of the declaration for acceptance of the inheritance.
According to Article 1273 of the CC of Ukraine, the heir under the will or by the law may waive the inheritance within the time limit prescribed by Art. 1270 of the Code. After the expiration of this period, the share of the inheritance cannot be increased on the grounds that anyone of the heirs waived to accept the inheritance in favour of the other heirs. In such a case, the person who received the inheritance has the right to dispose the inherited property fully or partially, by means of alienation to other heirs under the contract of sale, gift, exchange etc Determination of the additional period for submission a waiver of the succession f is not provided by the current legislation of Ukraine.
However, Znamenskiy City Court of Kirovohrad Oblast (in case № 2-690 / 11) satisfied the claim of M., who in the established period accepted the inheritance from, K. (cousin of the plaintiff)t, on expanding the period for filing a waiver of succession and satisfied the of K. claim against M. concerning determination of the additional period for the waiving of succession.
Before this edition, we have taken the opportunity to conduct an analysis for studying the practice of application by the first instance courts variations of determination of the additional period of time for submission of an application in cases on acceptance of inheritance, the result enables us emphasis on the differences of application by judges of the same provisions of the CC of Ukraine, as of 2003, during administration of justice in probate courts, moreover, it seems that judges of the local courts are not able to realize the significant differences between the CC of the Ukrainian SSR, dated 1963 and the current CC of Ukraine,
Courts rarely pay careful attention to the content of the abovementioned legal norms, and therefore cannot distinguish between missing the deadline for acceptance of the inheritance, accepting the inheritance by persons residing with the testator at the time of opening of the inheritance, and the acceptance of inheritance by taking possession and control of the hereditary property (Art. 549 of the Civil Code of the Ukrainian SSR).
The decision of Horokhiv District Court of Volyn Oblast dated April 19, 2011, where the right to inherit property is recognised behalf of L.R.S., Z.M.V. , belonged to the testator Z.V.P., deceased on May 10, 2009. It Is well seen from the case materials examination that plaintiffs did not apply the notary's office with the statement of acceptance of inheritance, at the time of opening of inheritance they were not living together (residence) with the testator. Consequently, there are no real grounds for recognition of their rights on the hereditary property. The court, satisfying the claim motivated its decision in that plaintiffs have accepted the inheritance by the means of the actual management of the property, in particular, the cultivation of the land, at the same time neglecting attention that the provisions of the CC of Ukraine don't provide an acceptance of inheritance by actual actions.
If the inheritance has been opened after January 1, 2004, courts should not satisfy requirements concerning establishing and proving the fact of acceptance of inheritance by entering into management or ownership of the inheritance property or to meet claims for recognition of the ownership rights on inheritance property on these grounds.
Courts to reject such claims for reinstatement of the term for acceptance of inheritance, were the testator died before January 1, 2004 and the inheritance have been accepted by one of the heirs or passed to the State, pursuant to Art. 555 of the CC of Ukrainian USSR.
Thus, the decision of Saki City District Court of AR Crimea, dated September 30, 2010 (case 3 6-14171sv11) satisfied the claim of M.V.E., ie it had defined the additional period of 4 months for submitting application for acceptance of the estate left by the testator M.O.I., on December 6, 1997.
Under the above circumstances, the application shall be subject to the rules of the CC of the USSR, not only in the part of the order of acceptance of inheritance, but also in determination of the range of heirs, by virtue of the will and so on. Therefore, when deciding whether to grant the additional period for acceptance of inheritance, which has been opened during the rule of the CC of USSR of 1963, the plaintiff's affiliation to the circle of the heirs, for the time of opening of the inheritance, is subject to be established herewith.
The decision of Chervonogvardeiskyi District Court of Makeyevka, Donetsk Oblast as of March 19, 2010 (case № 2-820 / 2010) satisfied the claim of K.U.V. to Makeyevka City Council on the recognition the plaintiff, as the heir of the fourth stage, with reinstatement of the additional period for submission of statement for inheritance, after the death of K.D.M., who died on September 25, 1995. The court recognized K.U.V. as such, that lived with the testator as a family, at least for the five years before the opening of the inheritance and considered the heir to the fourth stage according to the law with determination of the additional period for submitting application for acceptance of inheritance, opened after the death of K.D.M.
The proper defendant in disputes concerning definition of the additional period for to submit application for an acceptance of inheritance are the heirs who accepted the inheritance, or territorial communities in the face of local authorities at the place of opening the inheritance.
Based on the content of the Civil Code of Ukraine, in particular Articles 1272, 1277, defendants in cases on determination of the additional period for acceptance of inheritance, may be heirs of the deceased or the local self governments, as the representatives of the local communities. In case of the absence of heirs by the will and by the law, their deprivation of the inheritance, as well as the waiver to accept the inheritance by defendants, then heirs are the local communities in the face of relevant local authority, at the place of the opening of an inheritance.
Thus, in the case № 2-776 / 10 on the claim of S. to Panfylivska village council on determining the additional period, sufficient for to submit application for acceptance of the inheritance, Yagotyn District Court of Kyiv Oblast missed attention to the fact, that in the statement of claim it has been specified, that after the descent of plaintiff's father the inheritance has been open, on which have the right to inherit, as the first stage heirs, mother of the plaintiff and his brother..These persons were not involved in the case.
During the case consideration, the court failed to meet the requirements of Art. 36 of the Code of Civil Procedure of Ukraine, concerning the order of involvement or joining the case of the third parties, not claiming independent demands. This led to the violation of rights of heirs, as they were not informed about presence of the trials.
In regard of some cases, the local courts never clarified, if there are any persons, other than the plaintiff included in the circle of heirs under intestate succession, what persons have accepted the inheritance, whether any persons entitled to a compulsory share of the existing inheritance. There are some cases, where courts were accepting just the plaintiffs' statements, declaring own individual right for the inheritance. As a result of such errors, in case of the appeal of a person, who is the heir and has not been involved in a case, such decisions should be recognized as null and void, as well the the new decisions rejecting claims shall be adopted.
Thus, the judgment of the panel of judges of the High Specialized Court of Ukraine as of May 5, 2011 rejected a default judgment of Desniansky District Court of Kyiv, as of April 27, 2010 and the judgment of Kyiv City Appeal Court as of from November 9, 2010 on the claim of S.M.P. reinstatement of period for acceptance of inheritance, the case was referred back to the court of first instance for reconsideration. The court of first instance in order to satisfy the claim of S.M.P., failed to figured out the issue of availability of other heirs after the death of U.P.F. and decided the issue of the property rights of S.I.O., who was not involved in the case.
In considering this category of cases, courts should verify the presence or absence of hereditary cases at the notary's office at the place of opening the inheritance, the presence in court documents and case materials of a notary's refusal to commit a notaries action, particularly the refusal to issue a certificate of inheritance. In the presence of a heir's statement of waive his right of succession , than his/her claim concerning definition of the additional period for acceptance of inheritance, shall be permitted.
The presence of a notary refusal to commit a notaries action, in particular the refusal to issue a certificate of inheritance, is very essential, as it addresses the issue of reinstatement of period for acceptance of inheritance, since in the event of a justified notary's refusal to provide notaries services, a person has the right to apply the court for determining the additional period for acceptance of inheritance. In the case of an unjustified notary refusal to provide notaries action, a heir may appeal it in a judicial procedure.
Journal articles emphasize issues of the problem to qualify and assess the validity of the reasons of missing acceptance of inheritance. It has been suggested, in particular, the idea that courts should apply a more critical approach analyzing the validity of reasons of missing the term [6, p. 254]. The additional period for submitting application for acceptance of inheritance should be determined by a court, only if the court would find reasons of the missed deadline for acceptance of inheritance as valid. In this category of cases it is required to justify the reasoning of the judgment of the validity of the reasons for the missed deadline for acceptance of inheritance .
Kosiv District Court of Ivano-Frankivsk Oblast in the case № 2-328 / 2010 on the claim of G.U.D. in accordance with failure to provide any proof of valid reason of missing the deadlines had dismissed the claim. In this case, the court by its ruling has involved in the case the plaintiff's brother and sister, who, as it has been found, accepted the inheritance in the prescribed manner. The decision was left unchanged by the resolution of the Court of Appeal.
Although, there are some cases, where in a court decision on the reinstatement of the term for submitting application for acceptance of inheritance, is only stated, that the reason of missing the term is valid, while the exactly gravity of this reason is not specified .
Thus, taking a decision on the case № 2-155 / 10 on S. lawsuit against Olshanska village council on the definition of the additional period for acceptance of inheritance, Rokitnyansky District Court of Kyiv Oblast only states that the reasons are valid and the additional period for acceptance of in heritage for the plaintiff should be defined.
However, a rather categorical statements of scientists that "..practice analysis of determination by courts of the reasons of missing the term for acceptance of inheritance, is sufficient enough to say about a lack of motivation and contentedness in the vast majority of judgments" [6, p. 254]. A generalization of judicial practice of civil cases on inheritance, carried out by the High Specialized Court on Civil and Criminal Cases has demonstrated that in general, mostly correctly decide whether reasons of missing the term are valid, as well as they recognizes as valid the following reasons: a long illness, a long term stay of the heir outside the territory of Ukraine, the lack of information about the death of the testator, here the court consider the degree of family-related closeness of the testator and the heirs by the will and the law or a sentence in prison, stay on mandatory military service in the Armed Forces of Ukraine and other.
However, the first instance courts do not always take into account the explanations, contained in paragraph 6, p. 24 of the Resolution of the Plenum of the Supreme Court of Ukraine dated May 30, 2008 № 7, according to which, the valid reasons are related to the objective, insurmountable and significant challenges for the heir to act.
Thus, the ruling of the panel of judges of the High Specialized Court on Civil and Criminal Cases, as of October 19, 2011 (Case № 6-6304sv10) upheld the decision of the Court of Appeal of Dnipropetrovsk Oblast from November 11, 2010 to reject the claim of determining the additional period for acceptance of inheritance.
Cancelling the decision of the first instance court and denying the claim, the Court of Appeal proceeded from the fact that the plaintiff didn't provide evidences concerning his inability for the health reasons to apply the notary's with a statement of inheritance within the statutory period
The court of cassation indicated that the Court of Appeal made the legal conclusion that while the plaintiff was on the sick leave at the late 2008 due to the heart attack, but after the death of U.L.A. on August 25, 2009, the plaintiff was workable, has worked, had a reduced working hours and a week, during the next six months he wasn't taking sick leave, just visiting a doctor. In view of the above, the Court of Appeal found no basis for determining the additional period for acceptance of inheritance.
In some cases courts were recognizing as a valid, the following reasons of missing the terms of application for acceptance of inheritance: the legal unawareness of a plaintiff concerning the timing and the order of acceptance of inheritance, a lack of a person's awareness about succession, advanced age of the heir, disability, a lack of knowledge about the existence of a will, establishment of a fact of legal value for acceptance of inheritance (for example, establishment of the fact by one family residence), an uncertainty among the heirs on who will accept the inheritance, a lack of funds for travelling to the place of opening of the inheritance.
For example, the decision of Uzhgorod City District Court of Zakarpats'ka Oblast as of April 12, 2011 (case № 2-886 / 11) has stipulated for M. the additional period of three months for acceptance of inheritance. The reasons of missing deadlines the plaintiff stated the advanced age and the fact that he is a citizen of the Russian Federation, therefore is not familiar with the civil legislation of Ukraine. By the decision of the Court of Appeal of Zakarpats'ka Oblast, as of July 19, 2011 this judgment was cancelled and a new one has been passed, which denied the claim, because the plaintiff missed the six-month period for acceptance of the inheritance without a valid reason.
As the valid reason of missing the deadline for acceptance of inheritance an adverse weather conditions were recognized: as, for example, on these grounds the decision of Veselenivskyi District Court of Nikolaev Oblast from May 7, 2010 has satisfied the claim of L. against Kudryavtsivska Village Council.
Courts had recognized as valid the following reasons of missing the deadline for acceptance of inheritance: wrongful explanation by the village council of the inheritance order, which lay in the fact that the notary should be applied after the expiration of six months period, from the date of the testator's death (the case № 2-419 / 11 of Dolinskiy District Court of Kirovograd Oblast); temporary loss of title documents or absence of original documents on the inheritance property during the period for submission an application (cases № 2-280 / 10, 2-245 / 10, 2-1629 / 10 2-1628 / 10 2-1553 / 10, 2 1552/10 of Dobrovelychivskyy District Court of Kirovograd Oblast; № 2-1270 / 10, Kirovohrad Leninsky District Court; № 2-264 / 10; Vilshany District Court of Kirovograd Oblast; № 2-1175 / 10, Olexandrivskyi District Court of Kirovograd Oblast). However, this practice cannot be considered as correct, so far as in accordance with p. 3.29 Chapter 10 of the procedure of notaries actions of notaries of Ukraine, as far as the inheritance property was established and proceedings in inheritance cases have been initiated, the notary provides a written statement to the heir containing the list of documents required for acceptance of inheritance and certificate of inheritance, indicating the fees for performance of notaries acts. Such a statement must include the notary's official signature and stamped with his/her seal. In other words, the relevant title documents are only required for issuance of a certificate of inheritance.
We consider as unacceptable, the practice of local courts of recognising the actual use and possession of the testator's property, or residence with the testator at the time of opening of the inheritance, as the valid reasons of missing the deadline of application for acceptance of inheritance, of local courts.
The decision of Ratne District Court of Volyn Oblast, as of March 11, 2010 № 2-98 / 10, satisfied the claim for reinstatement of term for acceptance of inheritance, justifying the actual use and possession of the testator's property as the valid reason of missing the term for acceptance of the inheritance.
The decision of Shatsky District Court of Volyn Oblast, dated February 08, 2011, defined D.M.O. the additional period for acceptance of inheritance. However, according to the statement of claim and case files, it appears that the legal basis for the claim is absent, as the plaintiff, referring to the court, did not refer to a valid reason of the failure of submitting application to the notary, but grounded it by permanent residence without registration with the testator at the time of opening of the inheritance.
In the latter case, the said circumstances became the basis for submitting a claim or a statement (depending on the presence or absence of a dispute concerning the inherited property) for establishment of the fact of residence together with the testator at the time of opening of the inheritance, instead submitting the claim for reinstatement of the term for acceptance of inheritance.
Judicial practice demonstrates that the exact same circumstances are being recognized courts as valid, as well as not valid reason in deciding claims for definition of the additional period, since in some cases the establishment of validity of reasons of missing the term for acceptance of inheritance is a judgement call, for example, considering the heir's references on the severe morale, etc. According to Article 212 of the Code of Civil Procedure of Ukraine, court evaluates evidences according to its internal conviction, based on a comprehensive, complete, objective and direct study of available evidences in the case.
With respect to evidences that are taken into account by courts in determining the validity reasons of missing terms of application for the inheritance acceptance, that, in accordance with the requirements of Art. 58 of the Code of Civil Procedure of Ukraine, predominantly are the written evidence - information of the medical institutions concerning the state of health and medical treatment course, information on the absence of a person, or his\her duration in a business trip outside Ukraine, other references, certificates, correspondence containing information about the circumstances preventing the heir to appeal to the notary's office within the time established by Art. 1270 of the Code of Civil Procedure of Ukraine. In accordance with requirements of p. 2, Art. 59 of the Code of Civil Procedure of Ukraine, circumstances, which by the law are subject to be confirmed by certain means of proof, cannot be confirmed by other means of proof. Thus, a disease, or the heir-plaintiff's relocation to other region of Ukraine due to the business trip, or official necessity, can only be confirmed by testimonies of witnesses.
According to the content of p. 3 Art. 1272 of the Civil Code of Ukraine, if the heir missed the term for acceptance of the inheritance for a valid reason, the court may determine the additional period of time, sufficient to submit the application for acceptance of inheritance. Definition in the resolution part of the judgment of the judgment for the additional period for submitting of application for an inheritance is the right one. The resolution part of the judgment shall identify the additional period for submitting application of the inheritance, which starts from the date of the court's decision comes into force. Sometimes, the resolution part of the court's judgment wrongly indicate that the time course begins with the issue of judgment.
According the decision of Khust District Court of Zakarpattia Oblast, on June 24 2010 (Case № 2-1313 / 10) the additional period has been defined for BT, in particular, in particular, two months after making the decision to accept the inheritance.
Some local courts in resolving disputes regarding reinstatement of the period, set for acceptance of inheritance, in the operative part often apply formulations, that are not specified in the current Civil Code of Ukraine, for example, such as: "to grant additional time for acceptance of inheritance," "update additional period for acceptance of inheritance," "continue a period for acceptance of inheritance", "restore the deadline for submitting application for acceptance of inheritance." The right way is to the use this formulation in the court decision: "to determine the additional period for submitting of an application for acceptance of inheritance."
In the operative part of judgments somehow appears unreasonable obligations concerning notaries and public notaries "to determine the plaintiff the additional term and require the notary public, who is the third party in the case, to accept the plaintiff's statement of acceptance of inheritance" (Golovanevskiy District Court of Kirovograd oblast), "to provide the plaintiff with the additional period of two months to apply for a notary public of Novoukrainsky region of acceptance the inheritance after the decrease of the testator ... ".
The legal content of concepts of "period" and "term" is not the same, they are not synonymous and cannot be used interchangeably, since according to Art. 251 of the Civil Code of Ukraine, the period is a certain period of time, with expiration of which an action or event, that has legal significance is related. Since, when deciding on the establishment of the additional period for submitting application for acceptance of inheritance, courts determine exactly the period (two to three months, etc.), rather than a specific date, using of the legal concept of "term" in solving disputes of this type does not comply with the current Civil Code of Ukraine
In general, courts mostly correctly define the additional period for acceptance of the inheritance, as a certain period of time, but not till the calendar date. On the basis of the court's decision concerning determining the additional period for acceptance of inheritance, a heir shall apply to the notary's office for submission of the proper application, in the period determined by the court, then he will be deemed to have accepted an inheritance Attention is drawn to explanations of the Plenum of the Supreme Court of Ukraine under which, the re-determination by the court of an additional period for submitting application for acceptance of inheritance by the same successor is not provided by the current legislation (Art. 5 p. 24 PPVS № 7 as of May 30, 2008). If a heir failure to accept the inheritance, according to the previous court decision, which determined the additional period for acceptance of inheritance, such a heir can not again raise the issue of determining him an additional period for acceptance of inheritance.
Thus, according to the decision of Vynohradivskyi District Court of Zakarpattya Oblast dated February 17, 2011 (case № 2-282 / 11) the additional period of two months was determined to L. for submitting application for acceptance of inheritance.The first instance court didn't take into consideration the fact, that by a default judgment of Vynohradivskyi District Court of Zakarpattya Oblast of January 26, 2010, the additional period of three months for submitting application for acceptance of inheritance has already been determined to L., however this additional period wasn't used by the plaintiff and the inheritance has not been accepted.
So, together with adoption of the Civil Code of Ukraine, the value of judgment in certain types of hereditary disputes has been changed. The prerequisites for this conceptual was a definition of the Civil Code of Ukraine, as the private law Code [7 s.3-15].Naturally, that legitimating of hereditary rights by a court decision, that is more typically for the law-enforcement practice of the Soviet era, and is well preserved in some post-Soviet countries, such as the Russian Federation (Art. 1155 of the Civil Code), is levels by, instead the private autonomy procedure of acceptance of inheritance is being promoted.
In the civil law of Ukraine the court's decision to define an additional period for acceptance of the inheritance shall be taken to determine the successor, who missed the deadline, stipulated by Article 1270 of the Civil Code of Ukraine, as well as the possibility to submit to the notary the application for acceptance of inheritance . This means legislatively consolidation of legitimating right of inheritance to inheritance exclusively in the notaries order, by committing transactions between heirs. Thus, the claim and its presentation, as a means of protecting the subjective right of inheritance, rather than a means of implementation and enforcement of this right, separately implemented in some respects distinguished from regulatory relations within the specified right
Without committing a legal action by submitting notary's an application for acceptance of the inheritance, additional period for acceptance of the inheritance by the court in grounds of succession dynamics is not getting an independent value. The right varying nature of such a judgment depends on active legitimating of rights of inheritance by the court decision. If, of course it is permitted by legislation and jurisprudence, as, for example, in the Russian Federation, the court's decision to restore the deadline for acceptance of the inheritance will have a right varying character, providing simultaneous award of inheritance property.
REFERENCES:
- The French Civil Code (Code Napoleon) / Tr. from french. by V. Zahvataev Preface Dovgert A., B. thumbed / Editor. Ed. A. Dovgert. - K .: Truth, 2006. - 1008 p.
- V.P. Gribanov, Implementation and protection of the civil rights. Iz. second, stereotype e. / V.P. Gribanov. - M .: "Charter", 2001. - 479 p. (Classic Russian civil law).
- Y.B. Gongalo, Legal facts in the inheritance rights in Russia and France: a comparative legal research./ Y.B. Gongalo.- M. Statute, 2010. - 310 p.
- S.V. Romovskaya, the civil law of Ukrainian .Inheritance law: [Tutorial] / S.V. Romovskaya. - K .: Alerta; KNT; CUL, 2009. - 264 p.
- G.S. Limanskyi, Hereditary legal relationships: theoretical, methodological and practical problems: Dis. ...Doctor of Law: 12.00.03 / G.S. Limanskyi. - M., 2006. - 428 p. [Electronic resource] - Access:http://www.dissercat.com/
- Y.A. Zaika, E.A. Ryabokon' Inheritance law: studies. allowance./ Y.A. Zaika, E.A. Riabokon. - K .: Odysseus, 2009. - 352 p.
- The Civil Code of Ukraine: scientific and practical commentary / ed. developers of the project of the Civil Code of Ukraine. - K .: Truth, 2004. - 928 p.