Inheritance: Legal issues of inheritance in conditions of armed conflict

Conditions of armed conflict can create complexity in the legal regulation of inheritance. Here are some of the main legal issues that may arise in such circumstances:

Access to information and registration documents: in a conflict zone, access to registration documents, which are necessary to determine the rights of heirs and property, may be difficult. This can complicate the process of inheritance and distribution of property.

Death of a person without a place of death: conditions of armed conflict can lead to a situation where a person has died, but the place of death or the body has not been found. This can complicate the process of determining the fact of death and the rights of heirs.

Lack of Will: Armed conflict can lead to a situation where a person dies without a will or other documents to dispose of his property. In such cases, the inheritance may take place according to the law, which may cause additional questions and contradictions.

Violations of inheritance rights: Conditions of armed conflict can lead to violations of inheritance rights through violence, forced evictions or other acts. This may require protecting the rights of the heirs and restoring their rights through judicial or other procedures.

The full-scale invasion of the armed forces of the Russian Federation on the territory of Ukraine, which began on February 24, 2022, always brings changes to all areas of our lives. Since the introduction of martial law in Ukraine, inheritance relations have undergone significant changes. A number of subordinate legal acts were adopted, in particular: Resolution of the Cabinet of Ministers of Ukraine dated 28.02.2022 No. 164 "Some Notary Issues in the Conditions of Martial Law" and Order of the Ministry of Justice of Ukraine dated 11.03.2022 No. 1118/5 "On Approving Changes to Certain Normative - legal acts in the field of notary". Amendments to the Procedure for the performance of notarial acts by notaries of Ukraine, introduced later by the order of the Ministry of Justice dated 07.11.2022 No. 4990/5, relate to the refusal to perform notarial acts by sanctioned persons in accordance with the requirements of Law of Ukraine No. 361-IX of 06.12.2019. By order of the Ministry of Justice dated 18.08.2023 No. 2985/5, certain normative provisions, conditioned by the following changes in the laws, were introduced or submitted in a new edition to the mentioned Procedure. In particular, in clause 1.12 of the order in accordance with part 1 of Art. 1221 of the Civil Code of Ukraine (hereinafter referred to as the Civil Code of Ukraine) defines that the place of opening of inheritance is the place of submission of the first application, which testifies to the declaration of will regarding inherited property, heirs, executors of the will, persons interested in the protection of such property, or the demands of creditors. Therefore, the initiation of the inheritance case is carried out based on the submission of the first application to the notary.

Heirs under the will and by law can be natural persons who are alive at the time of the opening of the inheritance, as well as persons who were conceived during the life of the testator and born alive after the opening of the inheritance. Legal entities can also be heirs if there is an appropriate will. If there is a deceased inheritance, the relevant territorial community becomes the owner of the property. In the conditions of martial law, the issue of dead heritage became relevant. This primarily applies to the territory of hostilities, where civilians have died, who have no heirs left, but certain property is available. In a number of cases, the territorial community receives inherited property, recognized as a deceased inheritance, with debts and is obliged to repay them. Heirs according to the law receive the right to inherit alternately. Each subsequent line of heirs by law receives the right to inherit in the absence of the heirs of the previous line, their removal from the right to inherit, their refusal to accept the inheritance or refusal to accept the inheritance in favor of another, except for cases when there is a change in the order of receiving the right to inheritance. The heir under the will or by law has the right to accept the inheritance or not to accept it, it is not allowed to accept the inheritance with a condition or with a reservation. Thus, acceptance of inheritance is a legal act, namely, a deed committed unilaterally by the heir, by which he expresses his consent or disagreement to receive the inheritance.

However, in the conditions of prolonged martial law, the question arises of how to accept the inheritance of a serviceman who is constantly in the combat zone, since he must submit the application for acceptance of inheritance in person (Part 2 of Article 1269 of the Civil Code of Ukraine). And for the acceptance of the inheritance, a period of six months has been established, which starts from the time of the opening of the inheritance. Sometimes this period is shortened to three months, if the right to inherit depends on the non-acceptance of the inheritance or refusal to accept it by other heirs. On the other hand, it is problematic for a participant in hostilities to withdraw the submitted application for acceptance of inheritance.

The issue of exercising the right to inheritance by persons who are prisoners of the enemy, sentenced to long terms of imprisonment in the Russian Federation or whose whereabouts are unknown is also unresolved. It seems that the norms of the Central Committee of Ukraine do not guarantee their proper implementation of the right to inheritance under the conditions of a military conflict with the Russian Federation. Application of the norms of part 2 of Art. 46 of the Civil Code of Ukraine regarding a person who went missing in connection with hostilities, armed conflict, Part 3 of Art. 46 of the Civil Code of Ukraine regarding declaring a person dead may be premature. It is obvious that a separate legal regulation of inheritance relations is needed for persons who are military personnel or are in a combat zone or have been deported to the Russian Federation, or there are persons whose whereabouts are unknown. Researchers also note the impossibility of carrying out inheritance procedures due to obstacles that arise in connection with changes in social conditions and the regime, which may include restrictions on freedom of movement, a ban on collection of inherited property or access to it, restrictions on access to legal aid, etc. Martial law itself can affect the disposition and preservation of inherited property. For example, it can be withdrawn for military purposes.

In the conditions of hostilities on the territory of Ukraine, the occupation of its part, it is important to implement all measures for the possibility of fulfilling obligations and functioning of quality notarial acts. In accordance with the order of the Ministry of Justice of Ukraine dated March 11, 2022 No. 1118/5 "On the approval of amendments to certain normative legal acts in the field of notary" it is possible to carry out the inheritance procedure at the location of the heir. It should be added that in the conditions of martial law, a notary can initiate an inheritance case without using the Inheritance Register, if there is no access to it. However, when access to the Register of Inheritance is restored, the notary within five working days must verify the existence of the established inheritance case, inheritance contract and will. In practice, there are situations in which the heirs, upon whose statements inheritance cases were opened in the territories where hostilities are taking place, cannot obtain certificates due to the loss or destruction of inheritance cases. This issue needs to be resolved by restoring inheritance cases. From May 22, 2023, the Law of Ukraine "On Compensation for Damage and Destruction of Certain Categories of Real Property as a Result of Military Actions, Terrorist Acts, and Sabotages Caused by the Armed Aggression of the Russian Federation Against Ukraine and the State Register of Property Damaged and Destroyed as a Result of Military Operations" came into effect on May 22, 2023. actions, terrorist acts, sabotage caused by the armed aggression of the Russian Federation against Ukraine". This law also made certain changes to the regulatory legal acts of Ukraine, in particular, regulated the procedure for exercising the right of the heirs of compensation recipients to such compensation. It is important to amend Art. 1230 of the Civil Code of Ukraine regarding the right to compensation for damages, which belonged to the testator in accordance with the law. Thanks to these changes, heirs were given the opportunity to receive compensation for damage and destruction of certain categories of real estate objects as a result of terrorist acts, hostilities, and sabotage caused by Russia's armed aggression against Ukraine. Today, the issue of inheritance by Ukrainians who are outside our country is important. In such a case, when it is not possible to contact a notary in person, the heir can contact the consular offices of Ukraine to draw up relevant statements, which must be notarized to certify the authenticity of the signature. If there are no consular offices in the country of residence of the heir, it is possible to contact the notary of the country of residence. In the case of the presence of a foreign element in the inheritance relationship, the Law of Ukraine "On International Private Law" applies. In particular, inheritance relations are governed by the law of the state in which the testator had his last place of residence, if he did not choose the law of the state of his citizenship in the will. According to Art. 71 of this Law, the inheritance of immovable property is regulated by the law of the state on whose territory this property is located, and the property subject to state registration in Ukraine is regulated by the law of Ukraine.The Cabinet of Ministers of Ukraine made changes to the Procedure for State Registration of Wills and Inheritance Agreements in the Inheritance Register. Clause 4 of the Resolution of the CMU No. 164 dated 28.02.2022 stipulates that, under martial law, the wills of servicemen of the Armed Forces of Ukraine and other military formations, as well as employees of law enforcement (special) bodies, civil defense bodies, who are involved in the implementation of measures to ensure national security and defense, repelling and deterring armed aggression of a foreign state, the commander (head) of these formations (bodies) or another person authorized by such a commander (head) may, with subsequent sending of such wills, powers of attorney through the General Staff of the Armed Forces, the Ministry of Defense, the relevant law enforcement (special) or other body to the Ministry of Justice or its territorial body to ensure their registration by notaries in the Unified Register of Powers of Attorney, the Inheritance Register. It is also provided that the head of the camp (institution where the precinct was established) for prisoners of war can certify the will of the prisoner of war.

At the same time, commanders of the above-mentioned formations, persons authorized by them, heads of prisoner-of-war camps must comply with the Procedure for certifying wills and powers of attorney, which are equivalent to notarized ones. It should be noted that in Art. Art. 1251, 1252 of the Civil Code of Ukraine defines the list of officials and officials who have the right to certify wills, which are equivalent to notarized wills, in particular: - authorized officials of the local self-government body; - commanders (chiefs) of military units, institutions, formations, military educational institutions; - chief doctors and their deputies from the medical department or doctors on duty of hospitals, hospitals, other stationary health care institutions, heads of hospitals and others. This list is specified in Art. Art. 37, 38, 40 of the Law of Ukraine "On Notary". However, the said legislative acts do not refer to persons authorized by commanders. Such an innovation seems controversial in view of the exhaustive list of officials and officials (Articles 1251, 1252 of the Civil Code of Ukraine) who have the right to certify wills. We share this position and believe that expanding the circle of such persons is possible only by making changes to the Central Committee of Ukraine and the Law of Ukraine "On Notaries". It should be noted that certification of wills by officials of local self-government bodies requires that they have powers to perform notarial acts. Otherwise, the will will be considered null and void.