ОГРАНИЧЕНИЕ ПРАВА НА ОБЯЗАТЕЛЬНУЮ ДОЛЮ В НАСЛЕДСТВЕ: В ПОИСКАХ БАЛАНСА ПРАВ И ЗАКОННЫХ ИНТЕРЕСОВ НАСЛЕДНИКОВ

Abstract

The article is devoted to the analysis of the norms of paragraph 4 of Art. 1149 of the Russian Civil Code, which allow courts to reduce the mandatory share in the inheritance or even refuse to award it. Practice shows that judges use this power extremely reluctantly and most often they refuse to satisfy claims in such cases. In this regard, the balance of rights and legitimate interests, which was implied in these rules, is usually not achieved. The main reason for this is the abstract nature of the wording of the conditions for the limitation/ exclusion of the right to a mandatory share, which dictates the urgent need for their detailed critical analysis. Other questions that arise here also require an answer: those about the possibility of limiting the right to a mandatory share according to the requirements of heirs at law, about the admissibility of limiting the right of a testamentary refusal (legate) according to the rules of paragraph 4 of Art. 1149 of the Civil Code and some others. According to the author, when interpreting and applying these rules, one should strictly adhere to the position of ensuring the priority protection of the rights of heirs by devise, otherwise the indicated balancing is simply unattainable, and the existing unfavorable situation will only persist. Such an approach is additionally driven by the tendency set by the Soviet and continued by the Russian legislator to gradually diminish the right to a mandatory share in the inheritance.