Improvement of the mechanism of legislative definition of the legal consequences of refusal to accept an inheritance

The article examinesthe features of exercising the right to inherit by refusing to accept an inheritance and the legal consequences of such a refusal, and also identifies the main directions for improving the civil legislation of Ukraine in the field of inheritance relations in order to bring its norms to the requirement of legal certainty.In the article it is used general scientific and special legal methods of scientific cognition, including: comparative legal, philosophical and functional methods, dialectical and formal legal methods of cognition, method of analysis and synthesis.It is established that today the legal model of regulation of inheritance relations is experiencing significant obstacles in terms of its adaptation to modern judicial and notarial practice of applying inheritance legislation in the context of exercising the right to inheritance. It is substantiated that the content of the right to inheritance is revealed through three main powers that generate, change or terminate the legal relationship of an individual heir: to accept an inheritance, not to accept an inheritance, to refuse to accept an inheritance.Moreover, each of these powers is a transaction and an individual act performed by the heir personally.Attention is focused on the need to distinguish between refusal to accept an inheritance and its non-acceptance, leading to different legal consequences, since in case of non-acceptance of an inheritance, a person has the right, with the consent of other heirs who accepted the inheritance, or on the basis of a court decision to establish an additional period for accepting an inheritance, to file declaration of inheritance. Instead, аn heir who has declared a refusal to accept an inheritance and has not withdrawn his application within the prescribed period loses the right to inherit.In view of the fact that inheritance by will and inheritance by law are different, independent types of inheritance, and taking into account the delimitation at the legislative level of refusal to accept inheritance by will from refusal to accept inheritance by law, it is established that the provisions of Art. 1275 of the Civil Code of Ukraine, along with the possibility of refusal to accept an inheritance by will and subsequent inheritance by  law, it should be simultaneously reflected that the heir’s refusal to accept the inheritance bylaw does not deprive him of the right to inherit by will draw up in his favor, if the will does not was known at the time of refusal. At the same time, it is substantiated that the heir's right to inherit by will, provided that he refuses to inherit by law, does not require the recognition of such a refusal as invalid, because in this case there are no grounds for the invalidity of such a refusal.Updating the relevant provisions of Book 6 of the Civil Code of Ukraine will contribute to the unity of judicial practice and the uniform application of inheritance law in notarial practice.

Doi: 10.31359/jnalsu.29(2).2022.138-156