Invalidation of a Notarial Certificate of the Right to Inheritance and Cancellation of Ownership Rights: Actual Problems of Theory and Judicial Practice

Abstract

Introduction. In Russia, the right to inherit is guaranteed by the Constitution of the Russian Federation (part 4, article 35). This right includes both the right of the testator to dispose of his property in the event of death, and the right of the heirs to receive it. Art. 1162 of the Civil Code of the Russian Federation establishes the right of the heir who has accepted the inheritance to receive a certificate of the right to inheritance, which can be realized by him at any time after the expiration of the six-month period for accepting the inheritance. However, if the inheritance includes real estate, then a certificate of the right to inheritance is necessary for state registration of the heir's property right. The purpose of this article was to study the issues of recognition of certificates of the right to inheritance, both from the point of view of legislative regulation and from the standpoint of existing judicial practice. The legal consequences of the invalidation of certificates of the right to inheritance, including in relation to the registered ownership of inherited real estate, have also been studied.Materials and methods. This study is based on a combination of such methods of scientifi knowledge as: the dialectical method, which made it possible to connect the theory of inheritance law and judicial practice; the formal legal method made it possible to analyze legislative norms; The systematic method made it possible to consider the certifi of the right to inheritance as a system with internal unity and interconnections with other institutions of law.The results of the study. The study made it possible to analyze the provisions of Section V "Inheritance Law" of the Civil Code of the Russian Federation, the Fundamentals of the Legislation of the Russian Federation on Notaries, which regulate the procedure for issuing certificates of the right to inheritance to heirs (by law, by will), as well as the existing judicial practice on recognizing them as invalid in the force of disputability or nullity, including from the personal practice of the author. It was stated that the contestation of notarial certificates of the right to inheritance expands the range of judicial practice to invalidate notarized transactions, which, in turn, does not contribute to the proper protection of the rights and legitimate interests of citizens (in 2019, there were 18 cases of compensation for losses incurred through the fault of a notary, in 2020 -15). Today, questions remain open about the responsibility of notaries for errors, as a result of which material damage was not caused to citizens or if the damage cannot be calculated and expressed in monetary terms. A number of gaps in the legislation in the studied area were also identified.Discussion and conclusions. The absence in civil law of a clear correlation between the certificate of the right to inheritance and transactions is a legislative gap and does not contribute to the uniformity of judicial practice in inheritance disputes. It is advisable to make appropriate changes to Art. 35 Fundamentals of the legislation of the Russian Federation on notaries, as well as a number of articles of Section V "Inheritance Law" of the Civil Code of the Russian Federation based on the prevailing trends in judicial practice in inheritance cases.