Art. 1117 of the Civil Code affects citizens deprived of the right to inheritance, and those who risk losing it. Consider who and under what circumstances is deprived of an inheritance. How the procedure is built, and what is the meaning of the actions of a notary and a court decision.
Normative regulation
Art. 1117 of the Civil Code of the Russian Federation contains the main provisions that guide authorized and interested parties.
GIC - governs the procedure for exclusion of a person from successors. In the procedural law there are no special clauses about this category of cases, and the general provisions on the lawsuit are applied.
Who is concerned
Consider in relation to whom exactly Art. 1117 of the Civil Code provides for removal from inheritance. The list includes persons entitled to:
- inheritance by will;
- inheritance by law;
- to an obligatory share in the inheritance.
All are affected without exception. Disability, the degree of family relationship or matrimony, other factors do not exclude a person from the action of Art. 1117 of the Civil Code of the Russian Federation.
Reasons for dispossession
Deprivation of inheritance, according to Art. 1117 of the Civil Code of the Russian Federation, is allowed due to actions of a deliberate and illegal nature (it is assumed to be brought to civil, administrative or criminal liability). That is, the actions of the perpetrator:
- directed against the testator and the heirs;
- contributed to a change in the will of the testator during his lifetime;
- contributed to the call to inheritance of himself or other persons;
- contributed to the increase or change in his share or the share of third parties in the inheritance.
There are two more groups of citizens whose removal is associated with some nuances:
- persons deprived of parental rights;
- persons maliciously evading the obligation to maintain the testator.
What actions are we talking about
Why exactly become unworthy heirs? We list examples: forgery or theft of a will, forgery or forgery of documents of importance to inheritance. Coercion to write, change or revoke a will by, committing violence, the threat of murder. Fraudulent actions cannot be ruled out.
Beatings, insults when brought to administrative responsibility are also taken into account.
A specific list of violations cannot be indicated. The question is whether the actions of the guilty person had a connection with inheritance, whether they could affect the will of the testator and the heirs, is decided in court. In the comments to Art. 1117 of the Civil Code of the Russian Federation, the importance of the attempt by the guilty person is noted, it is not necessary that it reaches the goal. This is especially true in situations where violence and deception are involved.
Question of intent
The intentionality of the actions of the guilty person is directly noted in the text of the court decision. If the judge has concluded that the guilty person is careless (frivolous or negligent), the provisions of Art. 1117 of the Civil Code of the Russian Federation on the deprivation of inheritance does not apply. The severity of the deed (committing a crime or administrative misconduct) does not matter.
The mental state of the guilty person is also taken into account when the action is committed in a state of insanity: the person did not realize his actions and could not direct them. The rule applies to both mentally ill persons and those who find themselves in a state of temporary insanity under the pressure of life circumstances.
Assessing the circumstances of the incident, one should not confuse intent with motives (reasons that prompted illegal actions).
Ineligible
Here, within the meaning of the law, people who have previously inherited rights, but are deprived of it because of their actions. The testator has the right to restore them in their rights. To do this, you need to make a new testament.
Disabled Parents
If the court decision is not canceled, and the parents were not restored in their rights at the time of the death of the child (this does not mean persons limited in rights by the court decision), they will be assigned to those who cannot be the heir.
What is the feature of the status of such persons? The law does not stipulate that they have the right to inherit if an adult child has indicated them in a will. Thus, former parents are allocated in a special category.
To deprive the right of inheritance, interested parties provide a court decision to a notary or the notary shall demand it from the court. In this case, the decision of the notary is sufficient and a separate lawsuit is not filed.
Who falls under malicious evasion of helping relatives
The loss of the right of inheritance threatens persons who maliciously evaded the obligation to maintain the testator. Who is eligible for help from a family member:
- parents and children (including those who have come of age);
- wife during pregnancy and caring for the common child of the spouse;
- spouse during the period of caring for a disabled child until he reaches the age of 18;
- spouse during the period of caring for a common disabled child of group 1 (his age does not matter);
- brothers and sisters, including those who are not able to get help from parents and spouses;
- grandchildren and grandparents in case of need.
With the exception of parents and spouses, other participants are required to provide assistance to adult relatives, if they have a financial opportunity. The clarification notes the need for a court decision to recover child support for removal from inheritance. In the case of parents and children, there is no need for a decision to recover child support.
What is considered malicious evasion
The fact of malicious evasion of the payment of alimony in favor of parents or children is confirmed by a court verdict. A lawsuit is not filed in the court; a decision by a notary based on a sentence is sufficient.
In relation to other heirs, an application is filed with the court. The judge proceeds from the testimony of witnesses (friends, relatives, social workers), the duration and nature of the actions of the defendant. It turns out whether he had the opportunity to provide assistance. The evidence is a certificate from the bailiff. Income concealment is taken into account in order to evade payments.
Some nuances
A court decision fixing the unlawful actions of the heir may be made before the opening of the inheritance, and then attached to the materials of the inheritance case. The lawsuit on the application by the court of Art. 1117 of the Civil Code of the Russian Federation is also filed after the death of the testator in order to achieve the exclusion of a person from the list of heirs already with the help of the court.
If the actions of the defendant contain a corpus delicti or an administrative misconduct, then only the verdict or court order adopted in the framework of the Code of Administrative Offenses serves as evidence.
Renewal of inheritance rights
Persons in respect of whom a court decision, sentence, administrative order has the right to apply for a testament inheritance, except for parents deprived of their rights, and persons responsible for evading child support.
A will to allocate part of the property in their favor is drawn up or changed after the entry into force of judicial acts. The author of the will must be aware of all facts of illegal actions against him or other heirs at the time of writing the will.
The procedure for declaring unworthy
If the information that serves as the basis for the suspension has already been established in court, a new appeal to the court is not required. It is enough for the notary to receive a properly certified copy of the judicial act. The controversial decision of the notary can be appealed in court. This procedure affects persons who do not have the right to inherit property.
The law permits the filing of a claim to those who will increase the share of the inheritance or, if the claim is satisfied, will be called upon to inherit. Persons who are not potential heirs or beneficiaries, if their interests and rights are affected (for example, the use of housing), also have the right to apply to the court according to the position of the Supreme Court.
General rules for writing a lawsuit
Disputes on declaring an unworthy heir are excluded from the competence of a world court. Consideration of the claim is carried out in the district court at the place of residence of the defendant. If the subject of the dispute is real estate, consideration of the case is carried out already at their location.
The lawsuit has the following structure:
- name of court;
- information about the plaintiff (full name, place of residence, contact details);
- information about the defendant (full name, place of residence, contact details);
- information about third parties (notary public, other heirs, beneficiaries and persons whose interests are affected);
- statement of circumstances, links to regulations, judicial practice of the Armed Forces of the Russian Federation;
- court requirements;
- list of copies of attached documents;
- claim price;
- signature and filing date;
- receipt of payment of duty.
The duty is paid in the amount of 300 rubles. Some judges believe that this dispute is property, then the size of the fee is calculated from the assessment of property.
What documents are attached to the claim
The list is approximate. The applicant must proceed from a specific situation:
- information on the opening of a hereditary case (certificate from a notary public);
- death certificate of the testator;
- evidence confirming kinship and place in the order, including potential heirs;
- a copy of the will, if it was duly drawn up;
- documents confirming malicious evasion from the maintenance of the parent, child or relative (court decisions and orders);
- documents confirming the fact of pressure on the testator, other heirs (decisions, decisions and court sentences).
Filing a lawsuit
Documents are prepared according to the number of participants in the future process of recognition as an unworthy heir, one set is drawn up for the court. The original receipt is attached. Papers are transferred directly to the office.
Features of the trial
Whoever filed the lawsuit, the presence of the plaintiff and defendant is required. Disputes around inheritance are built on personal relationships, and it’s difficult to manage a judge’s documents and testimonies for a quality review of the case.
This is especially important in cases where there is no firm certainty in the defendant’s illegal actions.
Completion of the procedure
Until the judge decides, notarial actions are suspended. If the decision of the court of first instance is not appealed, it shall enter into force one month after the preparation of the decision of the reasoning part. After which the plaintiff gives his certified copy to a notary, who is already filling out documents.
If the property is already distributed
The decision due to passing through a multi-stage ship system may vary. The notary draws up documents, primarily based on the results of consideration in the court of first and second instance. The trial may end in a higher court after many months or even several years.
The property is distributed directly in the court decision if there is a claim in the claim, and then the registration of rights is carried out.
If the heir is deemed unworthy, and the claim did not provide for other requirements, the previously issued certificate of inheritance and in his name are canceled by a notary and new ones are issued. If the court confirms the right of inheritance, then the previously issued certificates of inheritance without regard to the plaintiff are also canceled and new ones are issued taking into account the new assignee.
The defendant, having lost the dispute in court, is obliged to return the property received earlier voluntarily, otherwise the remaining successors have the right to claim for the return of the property or compensation for its value. Compensation is also paid by the former consignee if some of the heirs did the work or provided the service in his favor.
Law enforcement by courts
According to Art. 1117 of the Civil Code of the Russian Federation, judicial practice is based on appeals of persons who wish to remove from the inheritance any of their associates, or heirs suspended by a notary.
Courts decisions are largely based on clarifications of the 2012 Plenum Resolution.
In some cases, to resolve the dispute, one fact established by the court (for example, a sentence of murder) is sufficient, in the second - the decision is based on voluminous material. Therefore, one cannot immediately predict how the consideration will end.