УСУНЕННЯ ВІД ПРАВА НА СПАДКУВАННЯ: ТЕОРІЯ І ПРАКТИКА ЗАСТОСУВАННЯ ПРАВОВИХ НОРМ

Abstract

The article examines theoretical aspects, normative regulation, and practice of application of legal norms on elimination from the right to inheritance. The general legislative conditions that must be observed when eliminating heirs from the right to inheritance had been considered. It is emphasized that removal from the right to inheritance does not limit the civil legal capacity of an individual in the context of Art. 26 of the Civil Code of Ukraine. Attention is drawn to the delamination of the concepts of “elimination from the right to inheritance” and “deprivation of the right to inheritance” through the indication of their distinctive features. Each of the legislative grounds provided for in Art. 1224 of the Civil Code of Ukraine for removal from the right to inheritance was analyzed in details. The expediency of changing the approach of legislation to the content of part 1 of art. 1224 of the civil Code of Ukraine is reasoned from the position of increasing the list of crimes for which a person can be eliminated from the right to inheritance. In the context of disclosure of the grounds for removal from the right to inheritance, which is provided by para. 2 h. 3 St. 1224 of the Civil Code of Ukraine emphasizes the need to consider it in a systematic analysis with the norms of the Family Code of Ukraine, which establish the obligation to support certain persons (Articles 180, 188, 198, 202, 265-271 of the Family Code of Ukraine). It is noted that Art. 202 of the Family Code of Ukraine provide the obligation to support their parents relies on adult children, regardless of their financial status and state of working capacity. Based on the analysis of judicial practice, it was concluded that mostly the heirs are removed from the right to inheritance due to their avoidance of providing assistance to the testator, who was in a helpless state due to old age, serious illness or disability. It is noted that “evasion of assistance” and “evasion of duty”, which are provided for in part 5 and para. 2, p. 3, art. 1224 of the Civil Code of Ukraine, accordingly, the grounds are not identical. The author’s conclusions and positions on the improvement of legislation in the specified sphere of the relations are provided.