Europeization of inheritance legislation of Ukraine: directions and steps
Authors: Zaika Yury ,   Mariupol State University
Published: May 2023

The article is devoted to the conceptual provisions of updating the inheritance legislation. For the first time in the doctrine of inheritance law, a comprehensive approach to the creation of a scientific concept of inheritance law reform is proposed, the directions and justification of the first practical steps are defined. The factors that lead to the need to update the inheritance legislation have been established: modern trends in the development of inheritance law, new developments in the doctrine; inconsistency of the provisions of individual civil law institutions, problems that arise in courts when considering inheritance disputes; the need to adapt domestic legislation to the legislation of EU countries. Problematic issues of modern national legislation in the field of inheritance by will, inheritance by law, objects of inheritance, exercise of inheritance rights are identified and their comprehensive solution is proposed. An analysis of the special testamentary capacity is given and it is substantiated that its occurrence is connected with the coming of age. An opinion is expressed regarding the special legal status of postmortem children and children born with the help of reproductive technologies. A mechanism for protecting the rights of such persons by creating special inheritance funds is proposed. The general theoretical characteristics of the freedom of the will and the proposed constituent elements of this freedom are outlined, in particular, its limits and the content of the testamentary refusal. In the context of Ukraine's signing of the Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions, the proposal to introduce simplified forms of testamentary dispositions is substantiated: a simple written will, and under extraordinary circumstances, a testamentary disposition in oral form. It has been proven that by legal nature a secret will is a deed concluded in a simple written form; a simulated norm that would determine the specifics of the execution of a will with a condition. Additional guarantees for the implementation of the principle of freedom of the will were proposed, in particular, it was proposed to give the testator the right to apply to the court for removal from inheritance of persons who have the right to a mandatory share of the inheritance. There is a well-founded need to expand the circle of persons who can be removed from inheritance, in particular, those who caused bodily harm to the testator, drove him to commit suicide, made a knowingly false accusation of committing a serious crime, and others. The need to change the status of dependents of the testator and instead of the right to inheritance to grant them the right to alimony at the expense of the inheritance has been proven. The legal structure of the inheritance contract is analyzed and the necessity of placing this institution in the book "Obligatory Law" is substantiated. Based on the analysis of the architecture of the main institutions of inheritance law, its place in the civil law system is determined. Since inheritance is one of the ways of acquiring property rights, it is proposed to change the structure of the Civil Code of Ukraine and place the book "Inheritance right" after the book "Property right and other property rights". The general conclusion of the study is the need to update the main institutions of the inheritance law of Ukraine, to harmonize the legislation in the field of inheritance and to adapt it to the law of the countries of continental Europe.