Reduction of the size of the obligatory share
REDUCING THE SIZE OF THE COMPULSORY SHARE | COURT DECISIONS
Hello,
This is a Legal Consultation for Heirs.
Inheritance lawyer Alexey Vyacheslavovich Moskvichev answers your questions.
Today, in the "Court Decisions" section, we'll discuss reducing the size of the compulsory share.
Here's the story. Tatyana Alexandrovna lived in her parents' apartment her entire life. First with her parents, then, after her mother died, with her father. Her father bequeathed this apartment to her. After her father's death, Tatyana Alexandrovna duly accepted the inheritance under the will.
In addition to Tatyana Alexandrovna, her brother, who had reached the age of 60 on the day the inheritance was opened, was also applying for the inheritance. He was therefore entitled to the compulsory share.
Tatyana Alexandrovna was very reluctant to share the apartment she had lived in her entire life with her brother.
This is why she came to the consultation.
So, here's the background information. There's a will, a testamentary heir, and a compulsory heir. In addition to the apartment, there was also a small cash deposit left by my father. The situation was further complicated by the fact that the will was drawn up before March 1, 2002. Therefore, the compulsory heir was entitled to not even half of what he would have inherited under legal inheritance, but two-thirds of what he would have inherited under legal inheritance, without a will.
Challenging my brother's right to the compulsory share was completely futile. From an inheritance law perspective, he was incapacitated, having already reached the age of 60 on the day the inheritance was opened.
Under these circumstances, we had no option to defend our right to the entire apartment.
The only option was to reduce the compulsory share through legal proceedings.
The court's right to reduce the amount of the compulsory share is established by current legislation, as defined in Article 1149, Clause 4 of the Civil Code of the Russian Federation: if exercising the right to a compulsory share in an inheritance would make it impossible for the heir under the will to transfer property that the heir entitled to the compulsory share did not use during the testator's lifetime, but the heir under the will used for residential purposes (a house, apartment, other residential premises, a dacha, etc.), the court may, taking into account the financial situation of the heirs entitled to the compulsory share, reduce the amount of the compulsory share or refuse to award it.
This is our basis for the stated claims: the compulsory heir did not use the apartment during the testator's lifetime and did not incur any expenses for its maintenance. Meanwhile, the heir under the will used the apartment for permanent residence.
Having reviewed all the materials available in the civil case and heard the parties' explanations, the trial court found no grounds for granting the stated claims to reduce the amount of the compulsory share. The court found that dividing the apartment into shares and allocating 1/3 of the share to the compulsory heir would not in any way violate the rights of the heir under the will. The heir under the will would still be able to live in the apartment and use it.
This court decision was appealed.
However, the civil division of the Chelyabinsk Regional Court found no grounds to uphold the appeal.
The trial court's decision was upheld, and the appeal was dismissed.
Therefore, in this particular case, we found no compelling arguments for the court to reduce the size of the compulsory share. There are court decisions in which the court has reduced the size of the compulsory share. Everything depends on the specific circumstances of the case. As always, it's all about the details.
And that's all I have for today. Leave your comments and ask your questions. Subscribe to the Legal Advice for Heirs channel so you don't miss new videos about inheritance. #inheritance #inheritance #heirs #legalhelp #inheritancelawyer
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TIMESTAMPS:
00:00 - Introduction - Legal advice for heirs;
00:15 - Topic of the consultation - Reducing the size of the compulsory share;
00:22 - Tatyana Alexandrovna's story;
01:25 - Initial data - there is a will;
03:03 - The court's right to reduce the size of the compulsory share;
06:20 - The trial court found no grounds;
07:05 - The trial court's decision was upheld;
08:08 - Conclusion - Legal advice for heirs.