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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE REPUBLIC OF BELARUS

of December 20, 2007 No. 17

About court practice on cases on inheritance and accomplishment of the resolution of the Plenum of the Supreme Court of the Republic of Belarus of December 21, 2001 No. 16 "About some questions of application by courts of the legislation on inheritance"

Having discussed materials of generalization of court practice on cases on inheritance, the Plenum of the Supreme Court of the Republic of Belarus notes that courts generally correctly resolve the disputes following from heritable legal relationship. At the same time in work of the courts take place and shortcomings connected with the wrong application of the current legislation, containing in the resolution of the Plenum of the Supreme Court of the Republic of Belarus of December 21, 2001 No. 16 "About some questions of application by courts of the legislation on inheritance" explanations are carried out not fully.

For the purpose of the correct and uniform application of the legislation Verhovno guo's Plenum of Court of the Republic of Belarus decides:

1. Draw the attention of courts that the correct and timely dispute resolution, fuss kayushchy of heritable legal relationship, is the major instrument for ensuring of the guaranteed Art. 44 of the Constitution of the Republic of Belarus of security of property and the right of its inheritance protected by the law.

By hearing of cases about inheritance courts should pay special attention on need of carrying out their proper preparation, using at the same time possibilities of preliminary judicial sessions, and during legal proceedings fully and objectively to find out the valid rights and obligations of the Parties, not to allow unilateral approaches to assessment of proofs, in particular expert opinions, to observe the guarantees of protection of interests of minor heirs provided by the law.

2. Judicial board on civil cases of the Supreme Court of the Republic of Belarus, regional and Minsk city to courts to exercise proper supervision of hearing of cases about inheritance, to timely correct miscarriages of justice, for the purpose of remedial action in work of the courts constantly to generalize court practice which results to use in work on ensuring the correct application of the legislation when implementing justice on this category of cases.

3. Make changes and additions to the resolution of the Plenum of the Supreme Court of the Republic of Belarus of December 21, 2001 No. 16 "About some questions of application by courts of the legislation on inheritance" (The national register of legal acts of the Republic of Belarus, 2002, No. 8, 6/312), having stated it in the following edition:

"1. Draw the attention of courts that, resolving disputes on inheritance, it is necessary to proceed from the constitutional guarantee of security of property and the right of its inheritance (Art. 44 of the Constitution of the Republic of Belarus) protected by the law.

Inheritance represents universal succession as the property of the dead passes to heirs in not changed type as a unit and at the same moment (item 1 of Art. 1031 of group of companies) if other does not follow from the Civil Code or other laws (on in case of measures, on following of cost of share of the dead in common property in case of impossibility of the Section of property in nature (Art. 1034 of group of companies); the right of the testator to bequeath part of property (item 1 of Art. 1041 of group of companies).

2. Courts should mean that circle of heirs, the procedure, terms of inheritance acceptance and structure of heritable property are determined by the legislation existing on the opening day of inheritance. However if the inheritance opened, it was not accepted none of heirs, did not carry over on inheritance right the state till July 1, 1999, then regulations of Civil Code which became effective since July 1, 1999 (Art. 1152 of group of companies) are applied to it.

3. The circle of the rights and obligations inseparably linked with the identity of the testator which do not devolve is established by item 2 of Art. 1033 of group of companies. The obligation of the testator on compensation of the harm done to them (including to life and health of the citizen, and also the death of the supporter) does not enter this circle and therefore is included inheritances. The heirs who accepted inheritance shall compensate the harm done by the testator within the cost of the heritable property which passed to them.

4. Owing to item 4 of Art. 1033 of group of companies if the testator was member of HCC, GSK, country or other consumer cooperative, are payenakopleniya in this cooperative part of inheritance.

Real estate (the apartment, garage, giving) for which share is completely paid according to item 4 of Art. 1033 of group of companies is included inheritances if during lifetime of the testator it was drawn up behind it on the property right in the procedure established by the legislation or was acknowledged heritable by a court decision. On cases on recognition of such property heritable courts as defendants should attract the relevant consumer cooperatives.

5. The heir can be recognized as unworthy and is discharged of inheritance only by the judgment in the claim of person for which such discharge generates the property effects connected with inheritance.

By consideration of such claims it must be kept in mind that the actions provided by subitem 1-3 of Art. 1038 of group of companies are the basis for discharge of unworthy heirs from inheritance if they are made by them intentionally. At the same time premeditated murder of the testator or attempt at his life by the heir shall be confirmed with sentence, and deprivation of the parent rights - the judgment.

The heir cannot be discharged of inheritance if the testator, knowing about the-faced attempt at his life made by it, bequeathed in its advantage property after attempt.

The judgment about refusal in the claim for discharge of inheritance of the unworthy heir is not obstacle for presentation of the claim for recognition of the will invalid.

6. The bases of recognition of the will invalid are abuses of regulations about form and the certificate of the will and other violations of regulations of group of companies attracting invalidity of the will or invalidity of transactions (item 2 of Art. 1052 of group of companies).

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