Inheritance law regulates one of the most important aspects of family life — the transfer of property from one person to another after his death. Although the law defines clear rules regarding the sequence of inheritance and the conditions for receiving inheritance, in real situations disputes often arise that require legal intervention. Especially difficult are the cases when heirs can be eliminated from the right to inheritance due to certain circumstances, or when there is a need to change the sequence of inheritance based on actual family relationships. Such situations require an understanding of the legislation, an objective analysis and a correct strategy of action.
Lawyers of the “Repeshko and Partners” Bar Association explained how to act in such cases in order to protect their interests and comply with legal regulations.
As you know, inheritance takes place in two versions: by law and by will. Both options have many nuances in which even experienced lawyers are sometimes confused. Very recently, a woman came to us for consultation with a question about the sequence of inheritance and future prospects, who since the end of the 90s lived together with her husband as one family (family holidays, vacations together, a joint budget, a semi-detached house – everything is as per the classics) but officially the marriage was not registered. Each of them already had children from previous marriages, and the husband died less than six months ago. The provided medical documents confirmed that he was a disabled person of the II group – heart disease, he received a pension on this basis, he did not work. According to the common-law wife, the father never communicated with his own son, although she was not against it, the son was not interested in the father either – his common-law wife even hid him, but according to the law, the son is the only heir of the first line, and a woman can be an heir only of the fourth line, if there is none of the previous three.
It should be noted that this situation is not unique. After the testator’s death, relatives usually remember everything: who brought groceries to the old mother, who quit his job to take care of the bedridden father, and who continued to live to his own satisfaction, whose funds improved the living conditions in the house, and who supported the person who had already passed away morally and with personal work into eternity It is after all these clashes that the question arises – is it possible to eliminate one of the heirs from receiving the inheritance or is it possible to change the sequence of inheritance and receive the inheritance to someone to whom it cannot belong according to the general rule?
Note that it is not possible to disinherit the heirs under the will for the reasons that we will consider below! Therefore, it does not matter whether the daughter, for whom the will of the ill bedridden mother was made, helped. Even if such a daughter has not seen her mother in the eyes for ten years, and other children have taken care of the dying woman, the law puts the will of the deceased first, even if it acts against logic and justice.
In accordance with the provisions of Art. 1258 of the Civil Code of Ukraine, according to the law, heirs receive the right to inherit alternately. Each subsequent line of heirs by law receives the right to inherit in the absence of the heirs of the previous line, their removal from the right to inheritance, their refusal to accept the inheritance or refusal to accept it, except for cases of changing the order of obtaining the right to inheritance.
According to Article 1259 of the Civil Code of Ukraine, a natural person who is an heir according to the law of the following stages can, by a court decision, receive the right to inherit together with the heirs of the stage that has the right to inherit, on the condition that for a long time she took care of, materially provided, provided other assistance to the testator who was in a helpless state due to old age, serious illness or disability.
It is possible to change the sequence of inheritance only in case of inheritance by law. In addition, according to the terms of this article, a court decision must be obtained for such changes. As for judicial practice, since the Civil Code of Ukraine has been in effect for a sufficiently long period of time, judicial practice has also managed to develop in this category of cases and has not changed for many years. Thus, in the decision dated May 30, 2019 in case No. 346/1178/17, the Supreme Court stated:
“The grounds for the satisfaction of such a claim are a set of legal facts established in a court order:
- taking care of the testator, i.e. providing him with non-material services (communication, advice and consultations, greetings on holidays);
- financial support of the testator;
- provision of any other assistance to the testator, i.e. such assistance, which has a materialized expression, cleaning the premises, cooking, repairing the apartment;
- a long time for carrying out the above-mentioned actions;
- helpless state of the testator, i.e. a state in which a person is unable to provide for his needs on his own, caused by old age, serious illness or disability.
At the same time, helpless should be understood as the condition of a person caused by advanced age, serious illness, disability, or when he cannot independently provide for his living conditions and needs third-party care, assistance and care. At the same time, the helpless state must be confirmed by appropriate records in medical documents.
On the basis of the above, the appellate court came to the conclusion that PERSON_3 was not an elderly person, and the case materials do not contain evidence of her inability to independently provide for her living conditions, the need for constant external care, assistance and care, as well as the duration of the plaintiff’s provision of assistance to the testator, therefore there are no legal grounds for applying the provisions of the second part of Article 1259 of the Civil Code of Ukraine and, accordingly, for the satisfaction of claims.
A similar conclusion on the grounds for granting a claim to change the sequence of receiving the right to inheritance was also noted by the Supreme Court in the ruling of December 11, 2020 in case No. 373/1144/17: the grounds for granting a claim regarding changing the order of inheritance by heirs by law are the following legal facts established by court order:
1) taking care of the heir, i.e. providing him with non-material services (communication, advice and consultations, congratulations on the holidays, etc.);
2) financial support of the testator;
3) provision of any other assistance to the testator, i.e. such assistance that has a materialized expression — cleaning the premises, cooking, repairing the apartment;
4) a long time of carrying out the actions specified in points 1-3;
5) helpless condition of the testator, i.e. such a condition during which the person is unable to provide for his needs independently, caused by old age, serious illness or disability.
In order to satisfy such a claim, the presence of all five of the above-mentioned circumstances is necessary.
As for removal from the right of inheritance in general, the law contains a sufficiently large list of such cases. But in this article, we are interested in only one clause of Article 1224 of the Civil Code of Ukraine: “By court decision, a person may be removed from the right to inheritance by law, if it is established that he avoided providing assistance to the testator, who due to old age, serious illness or disability was in a helpless state.” The Supreme Court of Ukraine noted in its practice that the rule of part five of Article 1224 of the Civil Code applies to all heirs by law, including those who, according to the Civil Code, were not obliged to support the testator.
Depriving a person of the right to inherit is a measure that should be used only as a last resort, taking into account, first of all, the character of the defendant’s behavior. At the same time, the helpless state should be understood as the helplessness of a person, his inability due to advanced age, serious illness or disability to physically and materially provide for his life independently, in connection with which this person needs external care, assistance and care.
Evasion of a person from providing assistance to a testator who needed help consists in intentional actions or inaction of a person aimed at avoiding the obligation to provide support and assistance to the testator, i.e. avoidance associated with the guilty behavior of a person who was aware of his duty, had the opportunity to perform it, but did not take the necessary actions.
In addition, the question of whether the testator needed help from the heir under the condition of receiving it from other persons, or whether the heir had the material and physical ability to provide such help, must be clarified by the court.
As we can see, the presence of all factors is required again, not just one of them. If the testator, for example, although he was old or had a serious illness, and needed outside care, but did not want to see one of the heirs, then there are no grounds for removing this person from the inheritance.
As for the evidence base of the condition of the testator himself, here again medical documentation is required. The more it is, the better!
At the same time, considering cases of the specified category, the Supreme Court of Ukraine noted that removal from the right to inheritance by law is possible under the following conditions: the heir’s avoidance of providing assistance to the testator if he has the opportunity to provide it; stay of the testator in a helpless state; the testator’s need for the help of this particular person (the decisions of the Supreme Court dated February 11, 2019 in case No. 756/11676/16-ts, dated March 25, 2019 in case No. 766/810/17). The question of whether the testator needed help from the heir under the condition of receiving it from other persons, or whether the heir had the material and physical ability to provide such help must necessarily be determined by the court (the decision of the Supreme Court of July 4, 2018 in case No. 404/2163/ 16-ts, dated June 19, 2019 in case no 491/1111/15-ts, dated March 2, 2020 in case No. 133/1625/18). The testator is in a helpless state if he is unable to meet his needs on his own (the decision of the Supreme Court of October 17, 2018 in case No. 200/21452/15-ts).
Note that the provisions of Article 1224 of the Civil Code of Ukraine apply to all heirs, including those who have the right to a mandatory share in the inheritance, as well as to persons in whose favor a testamentary refusal has been made.
Our law practice has a fairly successful case of solving such a case. For example, a semi-recumbent man lived in an apartment on the second floor of a building that did not have internal water supply and sewerage (such housing used to be called barracks). All this had to be carried up and down in buckets. The water was in a column on the street, only cold, respectively, hot water had to be heated. For many years (some ten), the man lived without registering his marriage with a woman who took care of him and provided all the necessary help. Both were not in officially registered marriages. The man had an adult son from a previous marriage, who had a car and money, but never helped his father, no matter how much he was asked. The husband died, his common-law wife also buried him, but the first-line heir is the son. After a long consultation, it was decided to go to court with a lawsuit in accordance with Article 74 of the Family Code of Ukraine: “If a woman and a man live in the same family, but are not married to each other or in any other marriage, the property acquired by them under the time of joint residence belongs to them by the right of common co-ownership, unless otherwise established by a written agreement between them.” That is, the woman appealed to the court to remove her son from the inheritance after his father’s death. Neighbors came to the meeting as witnesses, who confirmed how they saw that the poor woman was carrying full buckets to the second floor, because there was no money to build a water supply and sewer system, no one saw a son who would help his father. The court of first instance rejected the claim. However, the three-judge appellate court overturned the decision of the local court and upheld the woman’s claim.
Situations related to inheritance often demonstrate how difficult it is to find a balance between legal norms and real life circumstances. The sequence of inheritance and removal from the law of inheritance are legal mechanisms designed to regulate the issue of property transfer, but they do not always take into account the subtleties of human relationships and life realities. That is why it is important not only to know your rights, but also to take care of their provision in advance, using the tools available under the law, for example, drawing up a will or legal advice. The successful resolution of inheritance issues depends not only on formalities, but also on a competent legal strategy that allows protecting the interests of all parties.
