THE CONCEPT OF A MANDATORY SHARE IN THE INHERITANCE AND PERSONS WHO HAVE THE RIGHT TO HER IN THE LIGHT OF JUDICIAL PRACTICE
On the Consultant’s online consultation portal, a large number of questions relate to various aspects of inheritance law. This article addresses the notion of compulsory inheritance and those entitled to it in the light of case law.
Part one of Article 1241 of the Civil Code defines the number of persons entitled to a share in the inheritance, regardless of whether the testator made a will and the content of it. Such persons include minors and minors, disabled children of an heir, his disabled widow (widower) and disabled parents. For this category of persons, the amount of such a mandatory share is also set – half of the share that would have belonged to each of these categories of persons if inheritance had been carried out by law.
A large number of inheritance cases are related to the determination of the heirs entitled to a compulsory share and their shares in the inheritance.
In addition, the above article states that the size of a compulsory share in the inheritance may be reduced by the court, taking into account the relationship between these heirs and the heir, as well as other material circumstances.
In the decision of the Kiev-Svyatoshinsky District Court of Kyiv region №369/6530/15-c of December 10, 2015, the plaintiff filed a lawsuit to reduce the share in the inheritance. He motivated his demands by the fact that after the death of his wife PERSON_4 inheritance for real estate opened. During her lifetime, she made a testament to which all her property was bequeathed to him. At the time prescribed by law, he addressed a notary with a statement of inheritance. In the notary’s office, he became aware that the parents of the deceased PERSON_2 and PERSON_3, who were retired and entitled to a compulsory share in the inheritance, had made similar applications for inheritance. He indicated that she had died seriously ill for a long time. He constantly took care of her, spending all the money for her treatment. Instead, the defendants visited the case several times during the illness of her daughter, despite the severity of the illness. No help either material or moral died received from them. Asked the court to reduce the compulsory share of the deceased’s parents in the inheritance left after his wife died before parts that would belong to each of them in the case of inheritance by law.
The court rendered a reasoned decision in favor of the plaintiff in respect of satisfaction of the said claim. The Court referred to the clarification of the High Specialized Court of Ukraine on Civil and Criminal Cases, which stated that, in resolving such disputes (namely disputes about reducing the amount of compulsory honor in the inheritance), the nature and nature of the relationship was subject to heir and heir, other circumstances of significant importance. In particular, they may consider a prolonged lack of communication between the heir and the heir, the hostility caused by the immoral behavior of the heir, and so on.
In my opinion, the court’s decision is legitimate because it established:
1) PERSON_4 was ill with severe cancer: stage 4 melanoma of the left buttock skin.
2) According to the testimony of PERSON_6 and PERSON_7, it is established that between PERSON_4 and her parents PERSON_3 and PERSON_2 have developed a rather cool and intense relationship. After the diagnosis, the parents of the deceased came to visit their daughter only a few times. In this case, no material or moral assistance was provided to either the deceased or the plaintiff in the care of the patient.
3) The fact of the unfriendly relations of the deceased with the parents is reflected in the opinion of specialists in the field of forensic psychiatry and forensic psychology №308-c. Thus, experts indicate that PERSON_4 in communication tries to avoid subjectively unpleasant topics, especially about his relationships with his parents and the severity of his condition, because such memories worsen her mood, they do not support her, do not take her to a difficult stage for her .
4) From listening to the audio recording of the conversation PERSON_4 with her parents also shows the complexity and tension in their relationship, which worsened after the disappearance of documents and funds (after the departure of PERSON_№ and PERSON_2 in July 2014, the plaintiff and the respondent4 , personal effects, $ 5,000)
Thus, the court’s decision is reasoned and based on a wide range of evidence to support a hostile relationship.
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Author: Natalia Titovich