16.08.2021
Brothers and sisters are not considered heirs if the property is alienated by will.
The freedom of a person to dispose of his property under a will is subject to restrictions relating to the part of the law on the protection of the family and close relatives. This is stated in Section 41 of the Wills and Succession Act, Chapter 195. A testator may only dispose of a quarter of the net worth of his estate if he has a spouse, child or grandchild. In the case when the testator has a spouse, father or mother, but no child, then half of the net value can be disposed of. The testator may dispose of all his property when he does not have a spouse, child, father or mother.
If the testator disposes of his property according to the will exceeding the designated part, the will remains valid. At the same time, its part will be reduced by the part specified in the law. If the testator has only a spouse, he can leave all the property to the spouse. Brothers and sisters are not considered heirs.
These issues are analyzed in the decision of the Supreme Court of 20 July. The case concerned a brother who appealed against the decision of the court of first instance not to recognize as his heir a deceased relative who had left a will. The testator died, leaving his property to his mother, brothers and sisters, nieces and nephews (the children of his brother, who predeceased him). The appellant argued that the will was valid in respect of an integral part provided by law, i.e. half of the net worth of the property. The applicant also said that he was the legal heir of the other half, since their mother was alive at the time of the testator’s death.However, the mother renounced her right to inherit in favor of other heirs mentioned in the will.
The Supreme Court ruled that section 41 of the law establishes two types of forced inheritance. To the first belong the descendants, and to the second, the parents, who become obligatory heirs when there are no descendants. In this case, the spouse is always the obligatory heir. Brothers and sisters are not included.
The part that can be disposed of, the court said, is limited to narrow kinship boundaries. Moreover, the volume of this part increases and, on the contrary, limits the possibility of disposal. This is calculated depending on how close the expected dependencies will be. Outside these narrow limits, there is no share for disposal, since if the testator does not leave a spouse, descendants or parents, they can freely dispose of all their property.
The deceased, according to the decision of the court, disposed of all his property, while in accordance with Article 41, a restriction was imposed in favor of the mother. Violation of such a restriction does not invalidate the will, but the excessive disposition is reduced. The court raised the question of whether the mother’s statutory share was forfeited because she renounced her share. An option was considered in which the share is preserved and can be realized by brothers and sisters who, together with their mother, belong to the second class of inheritance by will. This is a matter of interpretation, and the law primarily recognizes the right to freely dispose of property as the right and choice of the testator.This freedom is limited to the extent necessary to protect and support the family in the strict sense of the word, to which the brothers and sisters do not belong. This is the general structure.
The court concluded that if the mother died before the son, then he could dispose of his property without any restrictions, and therefore the part provided by law concerned only the mother. Because the mother refused this legal protection, the statutory part lost its meaning. The fact that a brother could be an heir without a will does not make him an obligatory heir. The Supreme Court rejected his appeal.
