In my practice, I often encounter a situation when clients apply for advice or write a lawsuit, who for one reason or another missed the deadline for acceptance of the inheritance and the notary refuses to issue them a certificate of ownership by inheritance.
First of all, I would like to note that the inheritance of the heir is a right, and the obligation, respectively, the heir who wishes to accept the inheritance, is obliged to express his will in the form of an application to a notary with a statement of acceptance of the inheritance. This rule does not apply to heirs who lived with the heir at the time of the opening of the inheritance.
The law provides for a clearly defined period for the exercise of will in order to obtain an inheritance – it is six months, which are calculated from the date of death of the testator (Articles 1270, 1220 of the Civil Code of Ukraine).
If for some reason the above deadline for acceptance of the inheritance by the heir was missed, then he must apply to the court to determine an additional deadline for filing an application for acceptance of the inheritance.
I would like to emphasize that such a case is considered in litigation and, accordingly, persons claiming to receive an inheritance must prove the validity of the reason for missing the deadline for acceptance of the inheritance, they must provide evidence of circumstances that prevented the notary office in the prescribed the law of terms.
The decision of the Plenum of the Supreme Court of Ukraine №7 of 30.05.2008 “On judicial practice in cases of inheritance” states that the reasons are related to the objective, insurmountable, significant difficulties for the heir to perform these actions.
Meanwhile, the letter of the Supreme Specialized Court of Ukraine for Civil and Criminal Cases of May 16, 2013 № 24-753 / 0 / 4-13 contains an explanation of the reasons for missing the deadline for filing an application for inheritance, which the court can not be considered valid in the case of determining the additional term for acceptance of the inheritance: 1) legal ignorance of the plaintiff regarding the term and procedure for acceptance of the inheritance; 2) ignorance of the person about the presence of hereditary property; 3) old age; 4) incapacity for work; 5) ignorance of the existence of the will; 6) the establishment by the court of a fact that has legal significance for the acceptance of the inheritance (for example, the establishment of the fact of living with one family), uncertainty between the heirs who will accept the inheritance; 7) lack of funds to travel to the place of discovery of the heritage; 8) adverse weather conditions.
If we analyze the latest case law, we see that the courts have abandoned the position of formalism in resolving this issue, make decisions based on a detailed analysis of the reasons given by the plaintiffs for missing the deadline for acceptance of the inheritance.
In the resolution of 06.06.2018 The Supreme Court in case №592 / 9058/17-ц came to the legal conclusion that permanent residence abroad is not a valid reason for missing the deadline for acceptance of the inheritance.
Interesting in terms of practical application is the position of the Supreme Court set out in the decision of 17.10.2018 in case № 681/203/17-ts, which states that the renewal is subject to renewal if the time interval between the expiration of the inheritance and the date of appeal to the court with a statement of claim to determine the additional period for acceptance of the inheritance is insignificant.
Summarizing the above, I believe that in any case, the court in analyzing and examining the seriousness of the reasons for missing the deadline for acceptance of the inheritance must in each case proceed from the position of the principle of “proportionality”, which provides that interference with property, even if it is carried out in accordance with national law and in the public interest, will still be considered a violation of Article 1 of Protocol No. 1 if reasonable proportionality between interference with the rights of the individual and int heresies of society.