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THE LETTER OF THE SUPREME SPECIALIZED COURT OF UKRAINE ON CONSIDERATION OF CIVIL AND CRIMINAL CASES

of May 16, 2013 No. 24-753/0/4-13

To chairmen of Appeal Courts of areas,

cities of Kiev and Sevastopol,

Appeal Court of the Autonomous Republic of Crimea

About court practice of consideration of civil cases about inheritance

 On March 1, 2013 at meeting of plenum of the Supreme specialized court of Ukraine on consideration of civil and criminal cases information on generalization of court practice of consideration of civil cases on inheritance was discussed and taken into consideration.

With respect thereto we send extraction from the specified generalization.

1. The heritable relations in Ukraine are governed by the Civil code of Ukraine of 2003 (Civil Code), the laws of Ukraine "About notariate", "About private international law", other laws and subordinate legislations as regulations of substantive and procedural law.

By hearing of cases about inheritance courts shall establish:

- place of opening of inheritance;

- circle of the heirs who accepted inheritance;

- the legislation which is subject to application of rather legal regime of heritable property and time of opening of inheritance if the inheritance opened till January 1, 2004 or the testator lived in other state, the heir is foreign citizen and lives in other state, and the heritable property is in the territory of Ukraine.

The circumstances entering proof subject (p.1 Art. 179 of the Code of civil procedure of Ukraine (GPK) in the specified category of cases, it is possible to establish only in case of research of the documents which are available in heritable case. Competent evidences concerning the facts which need to be established for dispute decision about inheritance right are copies of documents of the corresponding heritable case, in particular, of the submitted applications for inheritance acceptance, the granted certificates on the right to inheritance, references of the housing and operational organizations, village, settlement councils at the place of residence of the testator.

It is necessary to pay attention to availability in case papers of the reasonable resolution on refusal of the notary in making of notarial action, in particular, of refusal in issue of the certificate on the right to inheritance.

In cases when concerning receipt of proofs the parties and other persons who are taking part on case have difficulties, the court according to their petition shall request from such proofs (p.1 the Art. 137 GPK).

If persons who are taking part on case do not declare the petition for reclamation of proofs, in particular, copies of documents from heritable case, obligation of court based on the p. 4 of the Art. 10 GPK are available explanation of consequences not of making of such legal proceeding.

The request of court in notary office shall concern documents concerning the circumstances which are subject to establishment by court, in particular, it the information about persons, filing in notary office petitions for inheritance acceptance which grants certificates on the right to inheritance, the certificate on the right to share in joint property of spouses and so forth.

Resolving issue of whether are subject to consideration by court of case on the right to inheritance without preliminary address of person in notary office for registration of the right to inheritance and refusal of the notary in registration of the right to inheritance, courts need to consider the following.

Chapter 86 of the Civil Code, and also the special legislation, in particular, the Law of Ukraine "About notariate", subordinate legislations determine notarial procedure for registration of the right to inheritance which corresponds to the set of functions of inherent jurisdictional activity of the courts established by the legislation and notaries. It found also confirmation in item 23 of the resolution of the Plenum of the Supreme Court of Ukraine of May 30, 2008 No. 7 "About court practice in cases on inheritance" (further - PPVSU of May 30, 2008 No. 7).

The refusal in opening of proceeedings (122 GPK) or closing of proceeedings (item 1 p.1 of the Art. 205 GPK) is not allowed by item 1 of the p. 2 of the Art. considering the exhaustive list of the bases of making of such legal proceedings determined by GPK.

Courts need to take into account that disputes on inheritance are subject to consideration by courts only according to the procedure of civil legal proceedings. Refusal in opening of proceeedings (item 1 of the p. 2 of the Art. 122 GPK) or closing of proceeedings (item 1 p.1 of the Art. 205 GPK) on those bases that the statement is not subject to consideration according to the procedure of civil legal proceedings, do not meet the specified requirements of the procedural legislation. The resolution of determination on closing of proceeedings without specifying to what jurisdiction of court consideration of such cases is referred, contradicts also requirements of the Art. 206 GPK.

Therefore, if lack of conditions for obtaining in notary office of the certificate on the right to inheritance is not confirmed with competent evidences, namely refusal of the notary in issue of the certificate on the right to inheritance, it can be the basis for refusal in the claim, but not refusal in opening of proceeedings (item 1 of the p. 2 of the Art. 122 GPK), closing of proceeedings (item 1 p.1 the Art. 205 GPK) or leaving of the action for declaration without consideration (the Art. 207 GPK).

Courts on miscellaneous explain Items 4, of 5 Final and transitional provisions of group of companies and unreasonably apply rules of the book of the sixth group of companies to the heritable legal relationship which arose before entry into force of group of companies of 2003 and do not consider explanations which contain in paragraph 3 of the item 1 PPVSU of May 30, 2008 No. 7.

Courts should pay attention that for the period of opening of inheritance during action of USSR Group its regulations provided certain actions which demonstrated inheritance acceptance, including inheritance acceptance by possession and management of heritable property (the actual inheritance acceptance). By Item 5 p.1 Art. 555 of USSR Group it was determined that the heritable property on inheritance right passes to the state if any of heirs did not accept inheritance. USSR Group did not limit term for receipt of the certificate on the right to inheritance under the law or the will including for the state. Therefore if throughout the established six-months term none of legal heirs or according to the will accepted inheritance, it is considered that the inheritance passes to the state.

Therefore, regulations of item 5 of Final and transitional provisions of group of companies according to which this Civil Code is applied also to inheritance which opened, but it was not accepted none of heirs before entry into force of this Code, it is necessary to understand in such a way that rules of the book of the sixth group of companies can be applied only to inheritance which opened after July 1, 2003 and it was not accepted none of heirs, the right on which inheritance arose according to regulations of Articles 529 - 531 USSR Group.

In case of resolution of disputes about inheritance on which inheritance opened and it was accepted till January 1, 2004, application of regulations of group of companies of 2003 by courts is not allowed, and regulations of the legislation existing for the period of opening of inheritance, in particular USSR Group are subject to application.

In case persons accepted inheritance by the actual actions (the accession to management and ownership of heritable property), but did not draw up the right to inheritance, the refusal of court in satisfaction of the claim for establishment of additional term for inheritance acceptance as in this case the bases for presentation of the claim and dispute over occasion of inheritance are absent is reasonable.

Persons who had the right to obligatory share in inheritance based on Art. 535 of USSR Group including dependents of the dead, however did not perform the actions testimonial of inheritance acceptance (Art. 549 of USSR Group) can address with the claim for prolongation of term for inheritance acceptance (Art. 550 of USSR Group).

In case of prolongation of term for inheritance acceptance and recognition of the property right to heritable property in the claim of persons having inheritance right under the law according to Articles 529 - 531, 535 USSR Group, inheritance by legal heirs of the third, fourth and fifth queues (Article 1263 – 1265 groups of companies) and determination of additional term by court for inheritance acceptance by the specified categories of persons is not allowed.

If the inheritance opened after July 1, 2003 and it was not accepted none of the heirs having inheritance right based on USSR Group, the inheritance right arises also at legal heirs of the third, fourth and fifth queues ("new queues") according to Articles 1263 – 1265 groups of companies. Claims of such persons about determination of additional term for inheritance acceptance are subject to satisfaction according to the established circumstances.

In that case the right to accept inheritance at person who is the legal heir of the third, fourth and fifth queues (Article 1263 – 1265 groups of companies), is performed in the terms established by the p. 2 of Art. 1270 of group of companies. In case of the omission of the specified terms such heirs can address with the claim for determination of additional term for filing of application about inheritance acceptance.

For the purpose of unity of right applicable practice and avoidance of collisions concerning inheritance by the state (Art. 555 of USSR Group) and transition of the inheritance recognized by court escheated to property of territorial society (Art. 1277 of group of companies), rules of paragraph 2 of item 5 of Final and transitional provisions of group of companies should be applied if the inheritance opened after July 1, 2003, however it was not accepted none of the heirs having inheritance right according to regulations of USSR Group. Thus, the expiration of the one-year term established by the p. 2 of Art. 1277 of group of companies and paragraph 2 of item 5 of Final and transitional provisions of group of companies can be subject to calculation, beginning not earlier than July 1, 2003.

Claims of bodies of prosecutor's office for the benefit of the state about transfer of heritable property to property of the state concerning inheritance which opened during the period after January 1, 2003 till July 1, 2003 are subject to satisfaction according to the established courts of the facts of the case.

Practice of those courts which in defiance of the principles of dispositivity of civil legal proceedings (the Art. 11 GPK) leave without movement actions for declaration in which, according to court the defendant is incorrectly determined (for example, executive committee of local council, notary office, the bureau of technical inventory count (BTIC), territorial authorities of the Ministry of Justice of Ukraine) is wrong, and provide additional term to the claimant for remedial action.

In case of presentation of the claim to the inadequate defendant court according to the petition of the claimant, without stopping consideration of the case, replaces the initial defendant with the proper defendant if the claim is made not to that person who shall answer in the claim, or recruits the other person as the codefendant on case (the Art. 33 GPK).

If the claimant does not declare the petition for replacement of the inadequate defendant, the court shall refuse satisfaction of the claim.

Concerning recognition of person accepted inheritance, in particular, in disputes on determination of additional term for inheritance acceptance, in cases when heirs constantly lived together with the testator, however are registered to other address, courts should consider the following.

The place of residence of physical person according to p.1 Art. 29 of group of companies is the apartment house, the apartment, other room suitable for accommodation in it (the hostel, hotel and so forth), in the respective settlement in which the physical person lives constantly, mainly or temporarily.

The residence needs to be distinguished from the place of stay of physical person, that is that place where it does not live, and temporarily is.

Statements for factual determination of permanent residence together with the testator for the period of opening of inheritance according to the procedure of separate production are subject to satisfaction with court if in the passport of the heir there is no mark about place of registration of person.

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