Article 1138 of the Civil Code of the Russian Federation. Execution of a will (current version)

The execution of a testamentary refusal is limited to the value of the inherited property . Moreover, the cost should be determined after all expenses are met from the inheritance, including:

• for the burial of the testator;
• for the protection and management of inherited property;
• allocation of a mandatory share;
• repayment of the testator's debts.

The testamentary refusal must be executed at the expense of the inheritance , which is not included in the obligatory share (Article 1138 of the Civil Code of the Russian Federation).

Definition of testamentary refusal

A testamentary refusal or legacy is the will of the testator, which he entrusts to the heirs.
According to it, upon entering into an inheritance, they must fulfill certain obligations towards a third party. All this is a prerequisite for entering into the right of inheritance, as well as the opportunity to exercise rights related to inheritance. Legacy refers to legal unilateral contracts that can only be terminated by one party to the transaction. Thus, the heir does not have the right to refuse obligations, but the legatee can.

Questions and disputes regarding testamentary refusal are regulated in accordance with Articles 1137 and 1138 of the Civil Code of the Russian Federation.

Registration of refusal under a will

The document for removal by order is drawn up in writing in the form of a list, which indicates the things to be transferred and the actions necessary to perform in favor of the person and information about him:

• FULL NAME.
• Date of birth and place of residence.
• If the third party is legal: address, name, registration date.

The Civil Code of the Russian Federation gives a citizen the right to draw up a legacy without a will, but it will only be valid if it is certified by a notary.

When registering, it is worth indicating all the heirs who, by the will of the testator, must fulfill his obligations.

A legacy is part of a will, which is why they have common requirements for execution.

A prerequisite for the further validity of the document after the death of its originator is a notary certificate. This unilateral transaction will be canceled if it has not been approved by a notary.

Elements of a testamentary refusal

The elements of a testamentary refusal include the following subjects:

• Heir
  who receives this or that property and at the same time becomes an obligated person to the legatee.
• Legatee or legatee
  is the person in whose favor the obligation is established. That is, this is the person to whom the heir provides material assistance or provides services within the framework established by the will. Both an individual and a legal entity can act as a legatee.

Interesting: Even the testator’s pet can act as a legatee. In this case, the heir will have to look after him.

The subject of the waiver is the imposition of obligations on the heir in relation to a third party. The following obligations may be assigned:

• transfer of property or funds;
• execution of work;
• provision of services;
• ensuring the right to use one or another bequeathed property for personal purposes;
• when inheriting premises - its full partial provision for a specified period to a third party.

An element of a testamentary refusal is not a refusal of inheritance.

Order execution mechanism

The responsibility for executing the will lies with the heirs. If they evade fulfilling the last will of the testator, then they can be held accountable.

Such disputes are considered in court. The legatee may file a claim to compel the execution of the will. At the same time, he may file a claim for compensation for losses incurred.

To avoid problems, the owner of the property needs to appoint an executor (Article 1134 of the Civil Code of the Russian Federation). The powers of the will executor are specified in the administrative document. The notary also issues him a corresponding certificate.

Responsibilities of the executor:

1. Ensuring the safety of the testator's assets. The executor of a will can perform legally significant actions himself or through a notary.
2. Requesting funds from third parties.
3. Organization of the transfer of ownership to the beneficiaries in accordance with the last will of the testator.
4. Conducting cases in government agencies or courts.

The executor of the will is authorized to require the heirs to carry out the order. If necessary, the executor can go to court.

Formatting and sample document

A testamentary refusal is formalized in the form of a will, which indicates:

• Services or property subject to waiver.
• Legatee's data.
• The circle of heirs to whom the legatee is entrusted and data on the size of shares in the inheritance.
• Additionally, the circle of persons who can replace the legatee in the event of his death before the opening of the will may be indicated.

The document is certified by a notary, after which it comes into force. Here is his example:

It is worth noting that a testamentary refusal can be included in the will itself. Then the sample document will look like this:

Legate forms

The main requirement for any will is that it must be in writing and certified by a notary. The last condition may not be met only in exceptional situations. For example, if the life of the executor is in serious danger, the will must be drawn up urgently. Then writing in simple written form is allowed. It will be considered a document if drawn up and signed in the presence of at least two witnesses. It is not a notary who can certify a will if a person is in a hospital, in a prison, on a sea vessel, etc. A complete list of such grounds is contained in 1124–1128 of the Civil Code of the Russian Federation. In such cases, it is certified by an official in the presence of witnesses.

The legacy can also be drawn up in the form of a closed will. In this case, only the manager himself is familiar with the contents. The closed envelope with the will is sealed according to a special procedure by a notary in the presence of witnesses. It is kept until the will is opened.

It is up to the person to decide whether to choose an open or closed form. But you need to keep in mind that if no one is familiar with the content, there is a risk of unwittingly violating the law in it, then the document will be declared invalid.

A testamentary disclaimer is drawn up like any other document, in accordance with the rules of law.

Realization of the right

The right is exercised with the help of a notary on the basis of an application from the applicant (legate) together with papers establishing the right to deductions on the part of the heir or a list of them.
Within three years from the date of proclamation of the will, the legatee has the opportunity to enter into his right. After which you can lose the right to execute the will of the testator. In the event of the death of a legatee, a new one can be appointed, but only by the testator. If the condition requires the legatee to live in the inherited premises, the legatee has every right to demand registration of his rights. For example, register in an apartment. Moreover, even after the apartment is sold, the legatee has the full right to use it within the framework of the conditions established by the testator.

Consider this example:

Ivanov A.I. bequeathed a three-room apartment to his son Ivanov S.A., but at the same time obliged him to provide one room in the apartment for the testator’s widow Ivanova I.R. to live in for 7 years. After 5 years, the son sold the apartment to the Gorokhov family, but at the same time, he warned them that for another 2 years, citizen Ivanova I.R. would live in the apartment with them. After this period, she no longer has the right to live in the apartment and must be evicted.

It is worth remembering that a legate can be evicted from an apartment on the basis of Article 35 of the Housing Code of the Russian Federation.

The concept of laying

The concept of testamentary assignment is discussed in detail in Art. 1139 of the Civil Code of the Russian Federation. This obligation is imposed by the testator on the executor, and implies the performance of an action that fully or partially serves a generally beneficial purpose.

Activities can have both a property and non-property focus:

1. non-property – the most common now, and may differ depending on the contents of the will and the possibilities of execution. For example: the heir must marry in order to become the full owner of the inheritance.
2. Property - relevant if the sale of property is unprofitable. For example: the heir must live in the inherited apartment for the rest of his life without the right to sell it.

The testator in the will can assign responsibility to the heirs for the pets that remain after his death. He has the right to demand maintenance and care for them.

Important! The fulfillment of the assignment cannot be ignored: if the heirs refuse to voluntarily fulfill the obligation, the executor is forced to persuade them to do so in court.

Executor

The person forced by the will to carry out the assignment is called the executor. His powers are regulated by the will, and are confirmed by a certificate of the established form, which the executor receives from a notary. According to Art. 1134 of the Civil Code of the Russian Federation, he notifies the notary of his consent to fulfill the request of the deceased in one of the following ways:

• leaving a signature in a completed will;
• supplementing the will with a statement recording consent to the procedure;
• by submitting a notice of consent to the notary within a month after the reading of the will;
• the actual beginning of the execution of the will of the deceased within a month after the opening of the will.

The executor undertakes to make every effort to fulfill the obligations required by the testator. His competence includes:

• ensuring the transfer of property to the heirs as described in the will.
• Taking measures to preserve or manage property before transferring ownership to heirs.
• Receipt of property assigned to heirs and transfer to them.
• Requirement to fulfill the assignment from the heirs.

The executor is not necessarily the heir, and the involvement of a third party most often complicates the situation. Payment for the executor's services is made from the total amount of the inheritance, which reduces the size of the resulting will. However, in the execution of the assignment, the third party plays the most significant role.

Important! The actions required in the will can also be directed at the executor, but at least partially must meet a goal useful to society. A striking example of an assignment is the requirement of the testator, obliging the heirs to spend a share of the inheritance on the purchase of goods for orphanages, hospitals, or contributions to a charitable foundation.

Execution order

The specifics of the execution of the assignment will depend on who the performer is. There are two options:

1. executor – heir of the will.
   Within six months after reading the will, the heir writes to the notary a statement of desire to issue a certificate of the right to inheritance. After 6 months, he receives a certificate, accepts the property assigned to him and begins to fulfill the assignment.
2. The performer is a third party.
   With the appearance of a third person, the situation becomes more complicated. The powers and measures that a third person must take to fulfill the assignment are prescribed by the testator in the will. After opening the will, the notary draws up a certificate in which the executor’s duties are duplicated.

If voluntary fulfillment of the assignment does not occur, the following have the right to demand judicial settlement of disputes:

• parties interested in fulfilling the assignment;
• executor of the will of the deceased;
• one of the heirs under the will.

According to paragraph 3 of Article 1139 of the Civil Code, other categories of citizens cannot insist on the execution of the assignment.

Reimbursement of the performer's expenses

Article 1136 of the Civil Code of the Russian Federation states that all expenses incurred by the executor during the execution of actions to carry out the assignment must be paid.

He also has the right to receive remuneration for his actions if payment is provided by the testator. The monetary reward is calculated in excess of the expenses incurred and is paid by the heir. If the testator has not taken into account in advance the additional payment for the executor of his claims, then the latter will have to be content only with mandatory reimbursement of expenses.

Attention: The executor has no right to demand remuneration if it is not specified in the will. However, if he decides that the effort expended is not comparable to the monetary reward offered, he may not consent to the assignment.

Opportunities and responsibilities of the heir

Often, a testamentary refusal concerns the person who inherits certain property.
In this case, the obligation to pay will concern only him. If the refusal concerns the entire property and there are several heirs, each of them is obliged to pay obligations in accordance with their share of the inheritance. The heir can refuse the inheritance, at the same time refusing obligations. In this case, the new heir is obliged to accept not only the inheritance, but also the obligations. If there are no heirs, then the property becomes the property of the state. But at the same time, the state is obliged to fulfill the obligations specified in the testamentary refusal.

Another option in which obligations are not fulfilled is the absence of a material base or thing that is affected by the refusal.

For example

: Petrov I.K. bequeathed to his daughter Sidorenko A.I. the amount of 2,000,000 rubles, which is in a bank account. At the same time, he also indicated a condition under which the daughter was obliged to pay an allowance to her half-sister O.I. Petrova in the amount of 7,000 rubles every month for 10 years. But after taking over the inheritance, it turned out that the bank went bankrupt and all the money in the account was burned. In this case, the benefit is not paid.

Examples of legates

Example 1. Ivanov drew up a will, which states that his eldest daughter inherits a private house, and his youngest daughter receives the land under the house upon refusal. The sisters had disputes over several issues:

1. How many hectares of land can the younger sister use?
2. Can the elder one use the same area and under what circumstances?
3. Does the youngest become a sub-heir to the house and under what conditions?
4. Can the sisters, having made mutual compensation, exchange their shares?

To avoid disputes that arose during the acceptance of the inheritance, the testator had to think through in advance all possible options for resolving such disputes.

In judicial practice, there are often cases when heirs, equal in rights under the law, dispute the conditions for using the right to inherited property

Example 2. Petrov indicated in the refusal that the right to use the apartment is transferred to his son, but only until marriage. And the right to dispose of this apartment passed to the daughter of the will. The son of the legatee married only 10 years after accepting the inheritance, and in accordance with Article 33 of the Housing Code of the Russian Federation, during the entire period of his right to pay utility bills and compensate his sister for losses associated with the maintenance of housing. The testator did not indicate the following nuances in the will:

1. Under what conditions may the legatee not bear the costs of maintaining the housing if he does not use it?
2. How else can the legatee use the apartment (other than living).
3. Should the daughter and how exactly reimburse the legatee for part of the expenses?

Petrov’s son and daughter had to go to court to challenge the testamentary refusal, since they were unable to reach an amicable agreement.

Cancellation of legatee rights

In what case does the heir cease to fulfill his obligations to the legatee?

• If the legatee dies and another legatee has not been appointed.
• If the obligations were fulfilled in full, both in terms of timing and volume.
• The legatee did not assume his rights within the specified period.
• The legatee renounced his right. It is worth noting that only complete refusal is possible. The legacy cannot be transferred to another person or the conditions for its provision can be changed.
• The legatee was found unworthy of inheritance in accordance with the law of unworthy inheritance.

Can applicants refuse inheritance?

Acceptance of an inheritance is not an unconditional requirement of the law. Applicants may waive their rights for various reasons (Article 1157 of the Civil Code of the Russian Federation). Among them:

• the property is located far away (different region);
• the heir's share is insignificant;
• the possibility of a conflict with the relatives of the testator;
• the inheritance is of no value to the applicant;
• the presence of debt obligations on the part of the testator.

Another reason for not accepting an inheritance is missing deadlines for filing documents. For example, the heir did not know about the death of a citizen or was outside the country/region.

Of course, the testator may not think about the future fate of the property. However, it is better to appoint an heir. Especially if the owner does not want his property to be transferred to the claimants by law.

Duration of validity of testamentary refusal

The duration of the obligation may be specified in the will.
If they are not specified, then their effect lasts either until the stated condition is fulfilled, or until the death of the legatee. For example, if we are talking about organizing a charity evening for a relief fund, then after its organization the action is considered completed. If it is indicated that the heir must pay a monthly allowance to a third party, but the terms are not specified, payments continue until the death of the legatee.

We also note that in the event of the death of the legatee, no one has the right to inherit his rights unless this action is specified in the will. For example, if you are required to pay benefits to your uncle, then after his death you are not obligated to pay any money to his children or heirs.

Contents of the publication:

1. Definition of the concept “testamentary disclaimer” 2. Subject of a testamentary disclaimer (list of rights transferred to the legatee) 3. Objects of a testamentary disclaimer 4. The right to receive a testamentary disclaimer is a personal right 5. Differences between a testamentary disclaimer and a testamentary assignment 6. Three-year period for receiving a testamentary disclaimer refusal 7. Transfer of the right to use residential premises by testamentary refusal:

• The subject of refusal is one of the rooms of an apartment or house.
• Subject of refusal - apartment, house.
• Testamentary refusal when transferring property rights from an heir to another person
• Is it possible to challenge a will in court if the heir himself needs housing?
• Joint liability of legatees for obligations arising from the use of residential premises

8. Drawing up and certification of a will with a provision for testamentary refusal 9. Execution of a testamentary refusal 10. Testamentary refusal in a certificate of inheritance. Encumbrance of the rights of heirs 11. When the right to a testamentary refusal does not arise 12. A testamentary refusal is objectively unexecutable 13. Transfer of the obligation to fulfill a testamentary refusal to other heirs

Definition of the concept of “testamentary refusal”

Testamentary refusal is a type of disposition of the testator.

The legacy of a will is called a legacy, and the legatee is called a legatee.

A testamentary disposition (legate) is one of the types of additional testamentary dispositions. The term “testamentary refusal” itself comes from the word “deny” in its original meaning, that is, in this case, meaning to provide something to someone. The contents of the entire will can be reduced to a testamentary refusal.

Testamentary disclaimer (legate) - an assignment on one or more heirs by will or by law to fulfill, at the expense of the inheritance, any obligation of a property nature in favor of one or more persons (legatees, legatees) who acquire the right to demand the fulfillment of this obligation (testamentary disclaimer) (Clause 1 of Article 1137 of the Civil Code of the Russian Federation).

Testamentary refusal - in inheritance law, the imposition on the heir under a will of the fulfillment of any obligations in favor of one or more persons - legatees who acquire the right to demand such fulfillment. Legatees can be persons both included and not included in the number of heirs by law. The testator has the right to impose on the heir to whom the residential house is transferred the obligation to provide another person with lifelong use of this house or a certain part of it. Upon subsequent transfer of ownership of the house or part of it, the right of lifelong use remains in force. The heir who is entrusted with a testamentary refusal must fulfill it only within the limits of the actual value of the inherited property transferred to him minus the part of the testator’s debts falling on him (Big Legal Dictionary. - M.: Infra-M. A. Ya. Sukharev, V. E. Krutskikh, A.Ya. Sukhareva. 2003).

“The name of testamentary disclaimer should be understood as a testamentary disposition by which a certain right is granted or established in favor of a known person at the expense of the inherited mass” (Shershenevich G.F. Textbook of Russian civil law. T. 2. M.: Statute, 2006. P. 435).

The essence of a testamentary refusal is that, out of the entire set of rights and obligations included in the inheritance, only a certain property right is transferred to a certain person or persons (legatees).

Subject of testamentary refusal (list of rights transferred to the legatee)

The list of rights that can be transferred to the legatee is established in paragraph 2 of Article 1137 of the Civil Code of the Russian Federation. This norm contains an open list of what may be included in the subject of a testamentary refusal. The subject of refusal refers to the actions of the heirs aimed at specific material benefits, carried out in order to achieve benefits by the legatees. Such an item could be:

• transfer to the legatee of ownership, possession under another property right or for use of an item included in the inheritance;
• transfer to the legatee of the property right included in the inheritance;
• acquisition for the legatee and transfer to him of other property (if for some reason the heir does not do this, for example, the thing belongs to the person who refused to alienate it, then, we believe that the legatee can legally oblige the heir to pay the cost of this thing to the legatee);
• performing certain work for the legatee;
• provision of a certain service to the legatee;
• making periodic payments in favor of the legatee, etc.

The list of property obligations that may be the subject of a testamentary refusal is not exhaustive - the range of obligations established by a testamentary refusal is not limited, provided that all of these obligations are of a property nature.

Objects of testamentary refusal

The objects of refusal will be specific material goods:

• things;
• cash;
• other property, including property rights, in respect of which the heir is obligated by the testator to perform various types of actions (or refrain from them).

It should be borne in mind that the objects of a testamentary refusal, and, in particular, things, must meet the requirement of negotiability (Article 129 of the Civil Code of the Russian Federation), since otherwise this refusal will be void, and the will itself will be invalid in the relevant part of the testamentary refusal.

The right to receive a testamentary refusal is a personal right

The right to receive a testamentary refusal is an exclusively personal right, non-transferable and inalienable. It is unacceptable to carry out any civil transactions with this right. This right cannot be transferred to another person: sell, exchange, bequeath, etc. “The right to receive a testamentary refusal is not part of the inheritance opened after the death of the legatee” (clause 25 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of May 29, 2012 No. 9 “On judicial practice in inheritance cases”).

Differences between a testamentary refusal and a testamentary assignment

The difference between a testamentary assignment and a testamentary refusal is the ability of the testator to impose obligations of both a property and non-property nature on one or more heirs, as well as a special subject composition that is entrusted with the execution of the testamentary assignment. The differences between an assignment and a refusal are discussed in more detail in the article “A testamentary assignment is .. Differences from a testamentary refusal.”

Three-year period for obtaining a testamentary refusal

The right to receive a testamentary refusal is valid for three years from the date of opening of the inheritance and does not pass to other persons. In this case, the time of opening of the inheritance, as a rule, is the moment of death of the citizen. Accordingly, the day of opening of the inheritance should be considered the date on which the moment of death of the testator falls, that is, the date of his death (clause 4 of article 1137, clause 1 of article 1114 of the Civil Code of the Russian Federation).

The three-year period established by paragraph 4 of Article 1137 of the Civil Code of the Russian Federation from the date of opening of the inheritance for filing a request for a testamentary refusal is preemptive and cannot be restored. The expiration of this period is grounds for refusal to satisfy these requirements (clause 25 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of May 29, 2012 No. 9 “On judicial practice in inheritance cases”).

According to the legal position of the Constitutional Court of the Russian Federation, expressed in the Determination of January 27, 2011 N 70-О-О, “the provision of paragraph 4 of Article 1137 of the Civil Code of the Russian Federation, establishing the period for receiving a testamentary refusal, is aimed at protecting the rights of citizens and as such serves to implement the requirements of part 3 Article 17, Art. Art. 35, 46 and parts 3 of Art. 55 of the Constitution of the Russian Federation, and therefore cannot in itself be considered as violating the constitutional rights of A.V. Petrov, listed in the complaint."

Transfer of the right to use residential premises by testamentary refusal

One of the most common types of testamentary refusal is a refusal, by virtue of which the heir to whom the right to a residential house, apartment or other residential premises is transferred is obliged to provide another person for the period of this person’s life or for another period of time with the right to use this premises or its certain part (paragraph 2, clause 2, article 1137 of the Civil Code of the Russian Federation).

Thus, the Civil Code of the Russian Federation directly provides that the subject of a testamentary refusal can be both the entire residential premises as a whole (apartment, individual residential building) and its specific part (room).

The subject of the refusal is one of the rooms of the apartment or house . For example, a father, bequeathing an apartment to his eldest son, imposes on him the obligation to provide the use of one of the rooms of the apartment to his youngest son. The youngest son in this example will only have the right to own and use a room in the apartment, as well as common areas (corridor, kitchen, bathroom). At the same time, relations of common shared ownership will not arise in this situation. Public places, for obvious reasons, cannot be an independent subject of testamentary refusal.

Subject of refusal - apartment, house . If a testamentary legacy is established for the entire residential premises, then after the opening of the inheritance and acquisition of ownership of the residential premises, the heir and the legatee will have to agree among themselves on the conditions, procedure and regime for joint use of the residential premises. If such an agreement is not reached, the dispute must be resolved by court.

When resolving disputes of this kind, the court, by way of analogy, should be guided by the explanations given in paragraph 37 of the joint Resolution of the Plenums of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 No. 6/8, which states the following:

“When resolving the requirement to determine the procedure for using property, the court takes into account the actually established procedure for using the property, which may not exactly correspond to the shares in the right of common ownership, the need of each of the co-owners for this property and the real possibility of joint use.”

It should be borne in mind that, after the will has been drawn up and certified, nothing prevents the testator from making a transaction with the residential premises, the right to use of which is established by the testamentary refusal. This can be purchase and sale, donation, exchange, etc. In this case, the testamentary refusal will be unexecutable and canceled by the time the inheritance is opened (see more about this below).

Testamentary refusal when transferring property rights from an heir to another person . According to clause 3 of Article 33 of the Housing Code of the Russian Federation, a citizen living in a residential premises provided by testamentary refusal has the right to demand state registration of the right to use the residential premises arising from the testamentary refusal.

A testamentary refusal is an encumbrance on the residential premises. At the same time, the new owner of the home (heir) has the opportunity to sell, donate, exchange or make other transactions, including bequeathing this home.

Does the execution of transactions with residential premises encumbered by a testamentary refusal (legate) affect the rights and status of the legatee?

No. This is expressly stated in paragraph. 3 p. 2 art. 1137 of the Civil Code of the Russian Federation, as well as in paragraph 24 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated May 29, 2012 N 9, which states:

“the legatee retains the right to use the inherited property regardless of the transfer of ownership of this property from the heir to another person (sale, exchange, donation, etc.) and from the transfer of the said property to other persons on other grounds (rent, lease, etc.) d.)".

Thus, it is practically impossible to evict a legatee from a residential premises, the right of use of which is based on a legacy.

Is it possible to challenge a will in court if the heir himself needs housing? Let's imagine a situation in which the testator bequeathed an apartment to his younger son, and a testamentary refusal was established in favor of the eldest son, according to which the younger son is obliged to grant the eldest the right to use this house or part of it? At the same time, the eldest son (legatee) is provided with living quarters (owns his own house), while the younger son (heir) is in dire need of living quarters, i.e. does not have any housing other than inherited property.

In such situations, the testamentary refusal cannot be challenged due to the following:

“When considering disputes between heirs under a will or by law, on whom the testator is entrusted with the fulfillment at the expense of the inheritance of any obligation of a property nature, and legatees, it is necessary to keep in mind that the right of the legatee to demand the fulfillment of this obligation is not affected by the need of the heir to use the inherited property (for example, personal need for housing)” (clause 24 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated May 29, 2012 No. 9).

Joint and several liability of legatees for obligations arising from the use of residential premises . If the heir to whom a residential house, apartment or other residential premises is transferred is obliged to provide another person, for the period of that person’s life or for another period, with the right to use this premises or a certain part thereof, the legatee shall use this residential premises for the specified period on an equal basis with its owner (Part 1 of Article 33 of the Housing Code of the Russian Federation).

Legally capable and limited legal capacity by the court, legatees living in residential premises provided by testamentary refusal bear joint and several liability with the owner of such residential premises for the obligations arising from the use of such residential premises, unless other conditions for the use of residential premises are specified in the will (clause 24 Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 No. 9).

Drawing up and certification of a will with a provision for testamentary refusal

A testamentary refusal can be established by the testator only in a will. No oral instructions of the testator can entail the legal consequences that are established for a testamentary refusal. Establishing the fact of a testamentary refusal is unacceptable. A will can be of any established form:

• notarial;
• equivalent to notarial;
• closed will;
• a will made under extraordinary circumstances.

The contents of a will may be limited to a testamentary refusal, that is, apart from such a refusal, it may not contain other instructions.

If a testamentary refusal is assigned to several heirs by will or by law in favor of one or more persons, then the will indicates which of the heirs and to what extent the obligation to fulfill the testamentary refusal is assigned, as well as in whose favor it is established.

In most cases, the will is certified by a notary (clause 1 of Article 1124 of the Civil Code of the Russian Federation). On the territory of Russia, a will can be certified by any notary, regardless of the place of residence of the testator.

Execution of a testamentary refusal

The heir's obligation to fulfill a testamentary refusal arises only if he accepts the inheritance.

Article 1138 of the Civil Code of the Russian Federation contains the rules of law on the execution of a testamentary refusal.

Deduction of debts of the testator upon execution of the refusal . The heir to whom the testator has entrusted a testamentary refusal must fulfill it within the limits of the value of the inheritance passed to him minus the debts of the testator attributable to him. That is, if the amount of debts turns out to be equal to the amount of property that must be transferred by virtue of a testamentary refusal, the execution of a testamentary refusal will become impossible.

The heir's obligatory share is inviolable . If the heir to whom the testamentary refusal is entrusted has the right to an obligatory share in the inheritance, his obligation to fulfill the refusal is limited to the value of the inheritance transferred to him, which exceeds the size of his obligatory share.

Assignment of refusal to several heirs . If a testamentary refusal is assigned to several heirs, such refusal burdens the right of each of them to inheritance in proportion to his share in the inheritance insofar as the will does not provide otherwise.

Paragraph 26 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 No. 9 “On judicial practice in inheritance cases” contains the following explanations:

A testamentary refusal is executed by the heir within the value of the property transferred to him, determined after:

• compensation for expenses caused by the death of the testator;
• reimbursement of expenses for the protection and management of inheritance (clauses 1 and 2 of Article 1174 of the Civil Code of the Russian Federation);
• satisfaction of the right to an obligatory share (clause 1 of Article 1138 of the Civil Code of the Russian Federation);
• deduction of the testator's debts attributable to the heir (clause 1 of Article 1138 of the Civil Code of the Russian Federation).

If a testamentary refusal is assigned to several heirs, such heirs who accepted the inheritance become joint and several debtors to the legatee (creditor). Each of them is obliged to execute a testamentary refusal in accordance with his share in the inherited property, unless otherwise follows from the essence of the testamentary refusal.

Obtaining a testamentary refusal . To obtain a testamentary refusal, you must contact the notary in charge of the inheritance case with an application for acceptance of the testamentary refusal.

Testamentary refusal of a certificate of inheritance. Encumbrance of the rights of heirs

The condition of testamentary refusal is a restriction on the property rights of the heir under the will. If the legatee intends to exercise his right to receive a testamentary refusal, then information about such restrictions (encumbrances) on the rights of the heir must be reflected by the notary in the certificate of inheritance issued under such a will. For example, in a will for an apartment in favor of a son, the testator provides for a testamentary refusal, establishing the heir’s obligation to provide the use of one of the rooms of the apartment to the testator’s nephew. Such a condition of testamentary refusal is a restriction on the property rights of the heir under the will. If the testator's nephew exercises the right to receive a will, then information about the encumbrances must be reflected by the notary in the certificate of inheritance issued under such a will.

Information about encumbrances on the rights of the heir (the contents of the testamentary refusal) is not indicated in the certificate of right to inheritance if:

• the legatee in whose favor the legacy was made waives the right to receive the legacy;
• a certificate of the right to inheritance is issued to the heir obligated by such refusal, and only for property encumbered by a testamentary refusal (for example, a will for an apartment provides for a testamentary refusal establishing the obligation of the heir to periodically pay a sum of money to a third party. When issuing a certificate of the right to inheritance (for apartment) the encumbrance due to a testamentary refusal is not indicated in this case, since the testamentary refusal is not associated by the testator with a specific type of property (apartment);
• a testamentary refusal encumbering a specific type of property has already been executed by the time the certificate of inheritance is issued.

When the right to testamentary refusal does not arise

Clause 3 of Article 1138 of the Civil Code of the Russian Federation lists cases when the right to bequeath a will, although provided for in the will, does not arise and, accordingly, the heir is released from the obligation to fulfill it if the legatee:

• died before the opening of the inheritance or at the same time as the testator;
• refused to receive a testamentary refusal (Article 1160);
• did not exercise his right to receive a testamentary refusal within three years from the date of opening of the inheritance;
• lost the right to receive a testamentary refusal in accordance with the rules of Article 1117 of the Civil Code of the Russian Federation (recognized as an unworthy heir);

An exception to this rule is the case when another legatee is assigned to the legatee.

A testamentary refusal is objectively unexecutable

A testamentary refusal must be objectively enforceable at the time of opening of the inheritance. This means that at the time of opening the inheritance, it is possible to transfer to the legatee the thing or property right that is the subject of the testamentary refusal.

For example, according to the will, a residential house is inherited by the testator's sister, and a testamentary refusal for part of this house is issued to the testator's nephew. Let's imagine that the specified house, after the writing of the will, was sold by the testator, or destroyed (for example, as a result of a fire).

In this case, firstly, the testamentary refusal will be unenforceable, and secondly, due to the lack of bequeathed property, the general process of inheriting the house specified in the will will also be unenforceable.

Transfer to other heirs of the obligation to execute a testamentary refusal

By virtue of Article 1140 of the Civil Code of the Russian Federation, it contains a provision that when a share of the inheritance due to the heir, who was entrusted with the obligation to fulfill the testamentary refusal, is transferred to other heirs, the latter, unless otherwise follows from the will or law, are obliged to fulfill such refusal (for example, the will may indicate that only one of the heirs is obliged to fulfill the specified testamentary refusal).

This provision applies both to the transfer of the obligation to fulfill a testamentary refusal, and to a testamentary assignment.

The obligation to fulfill a testamentary assignment (and a testamentary refusal) passes along with the inheritance share to other heirs if they accept the inheritance:

• by right of representation (Article 1146 of the Civil Code of the Russian Federation);
• in the order of hereditary transmission (Article 1156 of the Civil Code of the Russian Federation);
• as a result of the heir’s refusal of the inheritance in favor of another heir from among the heirs by will or heirs by law (Articles 1157, 1158 of the Civil Code of the Russian Federation) and the acceptance of the inheritance by this heir (Article 1161 of the Civil Code of the Russian Federation);
• as a sub-designated heir (another heir indicated in the will in case the heir at law or the named heir in the will dies, or does not accept the inheritance, or refuses it, etc.) (Articles 1121, 1161 of the Civil Code of the Russian Federation);
• as escheated property (transfers by inheritance by law into the property of the Russian Federation, constituent entities of the Russian Federation or into the property of a municipal entity in the event that there are no heirs both by law and by will, or none of the heirs have the right to inherit, or none of the heirs accepted inheritances, etc. (Article 1151 of the Civil Code of the Russian Federation).

Alexander Otrokhov, 10/03/2018

Obligations of the legatee

A testamentary refusal is inherently a unilateral transaction, therefore only the heir has obligations regarding its execution.

Accordingly, the legal status of the legatee and the heir differ. There is no obligation on the legatee to accept a testamentary refusal; therefore, he may, at his own discretion, refuse to accept it or not take any action regarding its acceptance, which will also be tantamount to refusal.

This type of failure is called passive. The right to change one's wish and request a waiver will remain with the legatee for 3 years.

The legatee may refuse to accept the refusal in an active manner. To do this, he must visit a notary and document his desire not to accept the refusal. In this case, the heir will not have to wait for three years for a possible claim regarding the execution of the refusal.