Глава 8. Договори між спадкоємцями щодо розподілу спадщини: актуальні питання та необхідність вдосконалення матеріального та процесуального законодавства, яке їх регламентує

The conclusion of contracts was known in ancient times and is still relevant today. Shares that are not distributed in kind can cause certain difficulties that force the interested parties to decide on distribution.
Joint ownership of inherited property received from a family member necessitates joint decision-making on its maintenance, ownership, use, and disposal, and it is difficult to achieve such a consensus on all issues. Therefore, quite often a certain period may pass from the acquisition of the right to a share in the joint property to its distribution, but due to conflicts regarding the use of the property or in the case of the need to receive funds or for other reasons, the joint property is divided by the co-owners. That is, the reasons may even be questions of how to use agricultural land, for example, to rent it out, sow it yourself, plant a garden, etc. However, the complexity of the division of land plots is because it is difficult to «divide» agricultural lands at least. After all, their intended use depends on the size, etc. Quite often, disputes also arise regarding the use of residential buildings, since the size and location of the rooms make their use impossible or difficult, as well as the distribution in kind according to the inherited shares. In other words, there is a certain «trading» of assets. If the situation is related to the distribution of a small plot of land where the house is located, then questions also arise regarding the establishment of an easement, as well as mutual concessions for the compensation of a part of the house in exchange for most of the land. In general, there are protracted negotiations, from the point of view of which these parties, who are still in a family relationship, agree on the division of property.
Factors that can affect the outcome of property division include unique family circumstances, the specific nature of assets, and traditional legal practices. The parties will use different mechanisms for the division of joint assets: sale, donation, or exchange, under the terms of which they «trade» with the consent of others their rights as co-owners of jointly owned objects. The various evolutionary stages of the agreement on the division of property by the testator’s family culminate in the final stage of agreeing. The agreement on the division of inheritance is a complex legal process. Potentially, in a single transaction, the beneficiaries can choose and implement the division by sale, exchange, or donation. These different legal constructions reflect the uniqueness of the decisions in each agreement and to some extent demonstrate the specific legal practice of the individual Old Babylonian city-state and the particular circumstances of each family.
However, in addition to the division of property, there are other agreements regarding the division of inheritance. For example, an agreement on quasi-partition upon adoption (quasi-adoption), an agreement on the division of residential property by the owner between its future beneficiaries.
The need to conclude such agreements arises when an agreement on the division of property is required, which differs from such concepts as sale, donation, exchange, etc.
Domestic scientists consider the agreement on the distribution of joint property very broadly and include other types of agreements in the list of such agreements, establishing that the agreement on changing the succession of the right to inheritance by law is atypical. It was determined that the contract under investigation belongs to contracts on the distribution of inheritance. Agreements on the distribution of inheritance are concluded in the field of inheritance, which indicates that they belong to inheritance agreements. It is proposed to supplement the existing classifications of civil law contracts by distinguishing a new type of civil law contracts – contracts in the law of inheritance on the level with the selection of a new type of inheritance contracts – contracts on the distribution of inheritance.» This is a bold hypothesis, but it is difficult to agree with it for various reasons, not least because the distribution of inheritance has been known since ancient times.
The factor that the term «distribution» of inheritance and giving it a broad legal meaning is analyzed is an interesting author’s hypothesis. At the same time, according to our position, the term «distribution of inheritance» is more balanced, since in Art. 1278 of the Civil Code does not quite successfully use the term «division», when in the content of this norm it is about the equality of shares in the inheritance and the allocation of a share in kind, and not about division. However, in Part 1 of Art. 1280 of the Civil Code, the term «distribution» is used with a direct meaning and «redistribution» as an opportunity to review the results of the distribution under new circumstances – in the case of acceptance of the inheritance by other heirs. In essence, the obvious meaning of the term «distribution» follows from this norm as the initial determination of the ownership of the share of each of the heirs. In this sense, the redistribution of the inheritance should be connected with the possible introduction of changes to the previously made distribution, that is, in this case, we do not limit the number of subsequent redistributions of the inheritance. This hypothesis is related to the fact that the number of heirs who missed the deadline for valid reasons is not limited by legislation and cannot be limited, but is determined by various legal circumstances.
Therefore, it is hardly expedient and possible, to apply in Art. 1280 of the Civil Code, the concept of «distribution» should be given a wider meaning than it has in the Civil Code, as this would lead to its ambiguous perception and application both in theory and in legislation and practice. Usually, theoretical terms should be distinguished by being original and should accurately reflect the legal meaning of actions, events, or conditions.
But an important element of the procedure for the distribution of common inheritance property or its redistribution are the subjects who must fix the relevant agreement or carry out such distribution according to their conviction.
It is indicated that the practice of concluding contracts by the living owner with his future heirs is widespread in foreign countries. At the same time, German experts equate inheritance with what they consider to be contractual inheritance.
It should be noted that the practice of concluding contracts on the distribution of inheritance in the practice of the Ukrainian notary is relatively new and does not have clear boundaries in regulation, which complicates the activity of notaries in certifying such contracts. There are several difficulties in the application of relevant legal norms in practice, as there is a lack of understanding of the legal nature and essence of the conclusion of contracts, the term of conclusion, and the procedure for notarization.
The opinions of individual authors are studied, about legal relations regarding the division of inheritance characterized by a weak state policy, this obliges the participants of such relations to draw up the content of agreements on the division of inheritance independently. For agreements between heirs on the distribution of inheritance to be valid regulators of the relations of its participants (heirs), conditions (clauses) must be clarified and formulated, which will be disclosed with sufficient completeness and consistency of the content of the relevant agreement and the purpose of its conclusion.
We do not agree with this point of view of the scientist regarding «weak state policy», since the Central Committee of Ukraine was not created by politicians or the Ministry of Justice of Ukraine, but by leading scientists of Ukraine. It is also difficult to agree with the statement that the lack of clear regulation of the terms of inheritance contracts «obliges the participants of such relationships to independently draw up the content of inheritance distribution contracts.» In Ukraine, some good notaries and lawyers can draw up high-quality contracts for the distribution of inheritance. Moreover, according to Art. 4 of the Law of Ukraine «On Notaries», notaries have the right to draw up relevant draft contracts. In our opinion, it is worth emphasizing here that this is a right, not a duty of a notary public. That is, the notary may not undertake the drafting of the relevant project, but this provision is positive for interested parties since the lack of experience in drafting original contracts will most likely lead to the drafting of a low-quality draft contract. Indeed, in this case, it is worth looking for an experienced notary who will be able to draw up a draft contract, but this will make it possible to prevent errors in its drafting with a high probability.
Thus, the agreement on the distribution of inheritance enters into force if the parties reach an agreement in the proper form on all the essential terms of the agreement. The main essential condition for agreeing on the division of inheritance is the subject of the agreement. However, either party may consider this condition insufficient and propose to include additional conditions in the contract. In this case, these conditions become essential. In connection with the instability of the regulation of the content of contracts between heirs on the distribution of inheritance, it can be concluded that the inclusion of normal conditions in the contract is currently impossible. We believe that such a general scheme of perception of contract terms is not entirely rational, since how to perceive ordinary terms or essential terms of a contract quite often in practice depends on the judgments of the parties to the contract unless otherwise regulated by legislation. This issue can be approached more precisely if we take into account the possibility of interpreting transactions and contracts (Article 213 of the Civil Code).
So, based on the essence of the process of concluding contracts, it should be taken into account that the notary who drafts the contract can edit it, therefore it is worth recognizing the right of the notary to interpret it, since according to Art. 5 of the Law of Ukraine «On Notaries», he is obliged to clarify the legal consequences that will arise for persons after his certification. It follows from this that the notary must be given the official right to interpret the contract upon its certification, then it will be clear that after its certification, the court can interpret the content of the contract. In this regard, Art. 213 of the Civil Code is proposed to be supplemented with a corresponding provision regarding the powers of the notary, namely: his duty to interpret the content of the deed or contract before and during its certification.
The Inheritance Regulation, which envisages wide acceptance of the inheritance contract, is considered. It is noted that it is worth revising Ukrainian inheritance law in advance for compliance with European standards since after Ukraine accedes to the EU it will be necessary to inform all EU countries about what types of contracts in Ukraine will be related to the issuance of the European Certificate of Succession.
This is also important for inheritance by law, because, in case of non-fulfillment of the terms of the lifetime maintenance (care) agreement and the inheritance agreement, they will have to be terminated or recognized as invalid or unfulfilled by the acquirer, so the property that was the subject of this agreement will be inherited by law. At the same time, if the terms of these agreements are fulfilled, the part of the property that belonged to the testator will not be inherited but will become the property of the acquirers.
The process of accepting the inheritance is quite long, and the inheritance law allows for several agreements between the heirs, which can significantly affect the size of the inheritance shares and the real things in each share in the inheritance. Therefore, it is necessary to analyze the possibility of agreements between the heirs at different stages of accepting or not accepting the inheritance. From communication with one of the clients, the author learned that the notary unofficially advised the heirs to agree on the distribution of the inheritance, as well as for certain heirs to waive the right to inheritance, but to receive a proper share of the inheritance in household items. When the author was informed of all the circumstances of the inheritance case, it became clear that the notary could not solve the complex inheritance problem, since the inheritance took place based on a will and some heirs had the right to a mandatory share, as well as part of the property remained. So, in such a situation, it was necessary to solve an arithmetical and at the same time legal problem, the complexity of which was determined by the complex subject composition of numerous heirs. Therefore, the notary tried to simplify its solution by artificially «transforming» the heirs who have the right to a mandatory share into ordinary heirs who claim property that is not subject to recording in the certificate of the right to inheritance.
A natural will was considered, when the testator bequeathed the specific property to each of the heirs, namely: a house to a daughter, a factory to one son, and a yacht to another let’s say. In such a case, the will of the testator is formulated in the Shodo of the objects of inheritance, so it is difficult to perceive the consequences of the refusal of one of the heirs to inherit, when the yacht will be divided into equal shares between the son and the daughter, because: firstly, the value of the factory and the house will be different, so someone from the testator gave the children a larger inheritance than the other. Secondly, in the case of the existence of a part of the inheritance not covered by the will, it can be assumed with a high degree of probability that the will of the testator was formulated about a certain property and nothing more. Therefore, in case of refusal of one of the heirs to inherit under the will, the property bequeathed to him should be considered as not covered by the will and should be inherited according to the law. That is, if the will of the testator regarding the entire property is revealed, it can be assumed that he thus intended to deprive one of the heirs of the right to inheritance.
At the same time, the will must be interpreted not only by the heirs under the will but also by the heirs under the law, when its content concerns the right to a mandatory share in the inheritance, which belongs to the heirs under the law of the first rank, who due to incapacity have the right to claim it, as well as the recipients of the response. With a high degree of probability, it can be assumed that the inheritance, which consists of household items, will be divided even without a written agreement. However, the interpretation of a will, which concerns a substantial inheritance between a significant number of heirs, requires not only a written form of recording of agreements – a contract, but also, in our opinion, a notarial form that will allow recording the agreement more reliably, to explain to the parties to the contract the consequences of its conclusion. If all interested parties sign the agreement, and the notary recognizes it as legal, then it will be difficult to recognize it as illegal or invalid in the next one. Therefore, the agreement on the interpretation of the will, which will establish the specific rights of the heirs and their obligations regarding the coverage of the testator’s debts, is a rational form of specification of the terms of the inheritance, which will allow establishing the executor of the will, if he was not determined by the testator.
We can assume with a high degree of probability that similar «simplified calculations» are made by other notaries, as well as directly by the heirs, and certain agreements are not necessary here.