JUDICIAL REMEDY OF INHERITANCE RIGHTS OF MINORS

Abstract

The article deals with the issue of understanding of judicial remedy of inheritance rights of minors and clarifying the peculiarities of it implementation, taking into account not only the legal status of property as an object of such protection, but also the civil capacity of minors to appeal for judicial remedy. The analysis of the procedural features of the court proceedings on inheritance in the form of claim proceedings and in separate set of proceedings, is carried out. It is stated that factfinding cases related to the exercise of inheritance rights form significant part of cases. Such cases, in the absence of a dispute over the right, are considered under the rules of separate set of proceedings, that does not contradict the civil proceedings principles. The legal mechanism of remedy of inheritance rights of minors is analyzed. It is stated that such legal mechanism should provide effective judicial remedy of civil rights or legal interest and correspond to the nature of such rights or law protected interest, nature of illegal encroachment, or the essence of the established fact. Based on a systematic analysis of case law, changes in the legal position on possible ways to protect the inheritance rights of minor heirs in the absence of owner status have been studied. The article highlights the current position of the Supreme Court on the lack of such a method of protection of civil rights as deprivation of a minor of the right to legitimate portion. It is mentioned that such a method of protection as the court determination of the share of the co-owners in the right of common property of the deceased testator is inefficiency and inconsistency with requirements of current legislation. The fact-finding cases on the proof of which the minor's right to inherit depends and which, in the absence of a dispute, are considered in a separate set of proceedings, is singled out. Attention is drawn to the problem of law and fact in law, which is relevant for jurisprudence. It is noted that the determining circumstance in the consideration of the application for the establishment of certain facts in a separate set of proceedings is that the establishment of such a fact is not related to the subsequent resolution of the dispute over civil law.