LEGAL CHARACTERISTICS OF INHERITANCE AGREEMENT IN UKRAINE AND THE WORLD EXPERIENCE OF THE APPLICATION OF INHERITANCE AGREEMENT
Journal Title: Вісник Запорізького національного університету. Юридичні науки - Year 2017, Vol 3, Issue
Abstract
The article is devoted to the clarification of the essence and content of such a legal category as “inheritance agreement”. The Ukrainian and world experience of the application of inheritance agreement is analysed. The interpretation of the concept of inheritance agreement by modern scholars is researched. The current legislation is analysed for a deeper understanding of the inheritance agreement. The subject, essential conditions, termination, and enforcement of the inheritance agreement are determined. The subject of the inheritance agreement is the transfer of ownership of the property specified in the agreement to the acquirer, but such rights are not hereditary and the acquirers are not successors. The essential conditions of the inheritance agreement include the subject, according to which certain property of the alienator, as defined by terms of the agreement, will pass to the acquirer, if all the personal orders of the alienator are performed by the acquirer. Essential conditions of the inheritance agreement indicate three signs. Among them, the property is considered that after the death of the alienator becomes the property of the acquirer, at the same time, its location, composition and value of the property, its qualitative criteria are important. In addition, the acquirer is obliged to take actions, taking into account the nature and content of actions, based on the agreement terms. In addition, another sign is other conditions that are included in the content of the agreement if one of the parties insists on it, that is, the term of action of the acquirer, volumes and cost of the alienator’s expenses. The cancellation of the inheritance agreement occurs at the request of the alienator, the acquirer, and persons controlling its execution. During the alienator’s life, this agreement may be terminated by the court if the acquirer does not fulfil instructions of the alienator, and after death, it may be terminated at the request of persons who control the enforcement of such an agreement. Enforcement of the inheritance agreement is carried out by civil norms taking into account the general methods of ensuring the fulfilment of obligations contained in Chapter 49 of the Civil Code of Ukraine. A significant role is played by civil liability measures for violating the obligations set forth in Chapter 51 of the Civil Code of Ukraine. The use of special means specified in Article 307 of the Civil Code of Ukraine to regulate these relations is also possible. Lawmakers of foreign countries consider an inheritance agreement as an agreement between the heir and the testator. On the basis of the agreement, all hereditary property or its share after the death of the testator, who signed the agreement, passes to the heir. In this case, the agreement may stipulate both payment conditions of this transition, on the basis of which the heir must comply with the obligations before or after the death of the heir, and free conditions for the transfer of inherited property to the heir. The German model of the inheritance agreement was historically the first in Europe. The German model is closely linked to the regulation of legal relations, which are implemented at the conclusion, execution, and termination of the agreement in Austria, Hungary, and Switzerland. The Latvian model also has some its own features. According to Art. 494–495 of the Swiss Civil Code, there is a negative inheritance agreement, it is known among lawyers for terminating the inheritance of a mandatory share. Given the European traditions of the inheritance agreement institution, we come to the conclusion that under the inheritance agreement, it is necessary to understand the unity of the testamentary disposition in case of death of a person and civil law contract.
Authors and Affiliations
T. M. Klementieva
Keywords
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