of May 30, 2008 No. 7
About court practice on cases on inheritance
For the purpose of ensuring identical application of the legislation on inheritance the Plenum of the Supreme Court of Ukraine POSTANOVLYAET to make to courts such explanations:
1. The heritable relations are governed by the Civil code of Ukraine (further - group of companies), the laws of Ukraine of September 2, 1993 N 3425-XII "About notariate", of June 23, 2005 N 2709-IV "About private international law", other laws, and also subordinate regulatory legal acts adopted according to them.
The relations of inheritance are governed by rules of group of companies if the inheritance opened not earlier than January 1, 2004.
In case of opening of inheritance before the specified date the legislation existing for that time, in particular, the corresponding rules of the Civil code of the Ukrainian SSR (further - USSR Group), including concerning inheritance acceptance, circle of legal heirs is applied. In case inheritance which opened to the introduction in action of group of companies and term on its acceptance did not end till January 1, 2004, the heritable relations are governed by this Code.
2. Cases on inheritance are considered by courts by rules of claim production if person takes a legal action with the requirement about establishment of the facts which have legal value which can influence the succession law and obligations of other persons and (or) in the presence of other heirs and dispute between them.
If emergence of the right to inheritance depends on dokazaniye of certain facts, person can take a legal action with the statement for establishment of these facts that in case of lack of dispute is considered by rules of separate production. In particular, in such procedure courts shall consider applications for establishment of the family relations with nasledstvodatel, accommodation with it one family, permanent residence together with nasledstvodatel for the period of opening of inheritance, inheritance acceptance which opened till January 1, 2004 and so forth.
If during consideration of the case according to the procedure of separate production it becomes clear that the dispute on the right takes place, the court based on part six of Article 235 of the Code of civil procedure of Ukraine (further - GPK) leaves the statement without consideration and explains to the applicant that he has the right to take a legal action with the claim in accordance with general practice.
3. According to rules of Article 1220 of group of companies and Article 249 GPK time of opening of inheritance should be considered the day of death of person specified in the death certificate, the issued relevant state body of civil registration.
Time of opening of inheritance posthumously of rehabilitees is day of decision making by the district commission on questions of renewal of the rights rehabilitated about return of the property rehabilitated or compensations of its cost to heirs of the first priority. The circle of heirs of the first priority is determined on the date of pronouncement of this decision. Recognition of person of bezvesta by the missing does not open inheritance.
The place of opening of inheritance is the last place of residence of nasledstvodatel which is determined by rules of Article 29, of part two of Article 1221 of group of companies. If the nasledstvodatel had several places of residence, the last place of registration of nasledstvodatel is considered the place of opening of inheritance.
4. In case of dispute decision concerning inheritance of the rights to property which is abroad or with the assistance of the foreigner, it is necessary to find out whether there is contract on legal assistance with this country, and whether other rules concerning inheritance, than in the Ukrainian legislation are provided in this agreement.
In case of disagreements regulations of the international treaty are applied.
The right to inheritance of real estate, according to article 71 of the Law of Ukraine "About private international law", is regulated by the legislation of the country in the territory of which there is this property.
5. In the presence of the will on all property the rule of part two of Article 1223 of group of companies is applied in case of rejection of inheritance or refusal of inheritance by all beneficiaries under a will.
In case of rejection of inheritance or refusal of it by one of beneficiaries under a will the regulation of part one of Article 1275 of group of companies according to which part in inheritance which he had the right to accept passes to other beneficiaries under a will and is distributed between them equally is applied.
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