Features of regulation of the institution of inheritance agreement in Russian law

Kiseleva Elena ORCID: 0000-0002-4330-9775 PhD in Law Associate Professor, Southern Federal University 344000, Russia, Rostov-On-Don, B.sadovaya str., 105/42 elenarum27@yandex.ru Other publications by this author

The set of legal norms regulating hereditary relations, according to a number of researchers, can be designated as one of the rather conservative areas of civil legislation ^{[1, p. 31]}. That is why the consolidation of the possibility of using such a legal structure as an inheritance contract in the Civil Code of the Russian Federation several years ago was a rather significant event that caused both positive and negative responses. In this context, in our opinion, the study of the problems of legislative regulation of the institution of an inheritance contract in Russian civil law through the prism of the main theoretical provisions defining its specific features and their practical application is of undoubted scientific interest.

This is especially significant due to the fact that, unlike the domestic practice of inheritance law, in many foreign countries the use of such a form of civil contract has already had a fairly long history, with its roots going back to Roman private law.

It should be noted that already the postclassic period of its development was characterized by the presence of institutions to a certain extent similar to modern inheritance contracts. However, they mostly represented one of the models for making a will.

In particular, according to the pactum fiduciae, a father could designate his right to inherit a certain share of his sons' property on the basis of mutual consent. That is, he became the heir on a contractual basis. At the same time, within the framework of the general rule, inheritance contracts within the framework of the doctrine of Roman law were defined as having no legal force ^{[2, p. 229]}.

Since the Middle Ages, the hereditary contract has become a construct characteristic of the German legal tradition. In its expanded form, the doctrine of the inheritance contract was developed in the first half of the XIX century by the German jurists G.F. Gasse and K. Bezeler. One of the main concepts on which this doctrine was based was the statement that the subject of the inheritance contract is not the transferred property, but the right of inheritance.

The main provisions regulating various aspects of the use of the legal structure of the inheritance contract were legislatively reflected in the German Civil Code of 1896 within the framework of a specially designated section. As one of the key points characterizing the German model of regulating relations related to the conclusion and execution of an inheritance agreement, it is necessary to highlight the provision that the heir who accepts the estate of the testator under the inheritance agreement acts as his universal legal successor ^{[3, p. 44]}.

Despite the fact that the legal institution of the inheritance contract has found its normative consolidation in the legislation of many countries of the world, it is noted that it is currently most widespread in such states as Germany, Great Britain and Switzerland, where its use regulates, respectively, 15%, 48% and 75% of cases related to accession inherited ^{[4, p. 35]}.

As for the definitions of the essence of the inheritance agreement that take place in Russian legal thought, as one of the examples characteristic of the pre-revolutionary period of its development, one can cite the definition of G.F. Shershenevich, according to whom, within the framework of such an agreement, two or more persons define each other as heirs after their death ^{[5, p. 332]}.

If we turn to the position of modern representatives of domestic legal science, then, for example, D.G. Zolotukhin interprets it as an agreement between the parties, according to which one of them (the alienator) makes an order to transfer the right to property belonging to her to another party (the acquirer) or a third person, made in the event of the death of the alienator ^{[6, p. 21]}. In turn, P.V. Krasheninnikov understands by this category the order of the first of these parties expressed in the form of a contract between the potential testator and heirs on the transfer of rights to the property belonging to her in the event of the death of the testator ^{[7, p. 264]}.

The interpretation of the essence of the inheritance contract proposed by I.V. Matveev is somewhat narrower, who defines it as an agreement between the testator and the heir, according to which, after the death of the first, the inherited property or part of it passes to the second party of the contract ^{[8, p. 7]}. As you can see, this author did not consider the possibility of concluding an inheritance agreement in favor of a third party.

From the point of view of the authors of the collective monograph "Fundamentals of inheritance law of Russia, Germany, France", the inheritance contract has as its key characteristic the appointment of an heir, and not just the registration of the transfer of certain property to someone ^{[9, p. 72]}. Precisely, this circumstance, in their opinion, distinguishes the inheritance contract from other types of civil law contracts.

In general, based on the results of the analysis of both the above and other definitions present in the legal literature, it can be concluded that the inheritance contract has a symbiotic legal nature, which finds its manifestation in the presence of essential features in its substantive side, on the one hand, a contractual obligation, and on the other – a testamentary disposition. At the same time, the essential conditions of the inheritance agreement should include such items as the property that is the subject of the agreement, the circle of heirs and the procedure for transferring property to them in the event of the death of the testator.

Some authors note that there is a certain similarity between the inheritance contract and the contract of lifelong maintenance with a dependent ^{[10, p. 480]}. The key difference between them lies in the different moments of the transfer of ownership of the property: if in the first case it is the death of the testator, then in the second case it is the conclusion of a contract.

Turning to the history of the development of the concept of the institute of hereditary contract in Russia, it can be noted that it originates in the first quarter of the XIX century. Thus, the initiator of the reform of domestic legislation, M.M. Speransky, devoted a separate chapter to him in the draft Civil Code, which was published in 1814. Within the framework of this chapter, an inheritance agreement was defined as a mutual agreement between two parties that one of them leaves his property or part of it to the other after death, and the other party, accordingly, undertakes to accept it. The subject of such an agreement was those rights and property that were granted the right to dispose of according to the will. At the same time, the alienator refused the right to bequeath, sell or donate the property indicated in the inheritance agreement, which was returned to him in case of termination of the agreement ^{[11, p. 62]}. At that time, this idea did not find its legal embodiment alone. Subsequently, both Russian and Soviet civil legislation recognized only two forms as the grounds for the emergence of hereditary relations, which are inheritance by will and by law.

For the first time in recent history, a bill providing for the legal regulation of the institution of an inheritance contract by introducing relevant provisions into the Civil Code of the Russian Federation was submitted to the State Duma in 2013 by deputies O.V. Savchenko and R.S. Ilyasov. In its text, such an agreement was defined as an agreement according to which the acquirer, in accordance with the order of the alienator, assumes the obligation to perform certain actions, acquiring after the death of the latter the right to property belonging to him, which is defined in the contract. According to the draft, while only an individual could act as an alienator, the possibility of performing the function of an acquirer was provided for citizens, organizations, as well as public entities. The necessity of state registration of the inheritance agreement was also determined. At the same time, this draft law, which, from the point of view of O.E. Blinkov, was an implementation of the legal structure of the contract in question contained in the text of the Civil Code of Ukraine with certain changes, was withdrawn by the author already at the stage of the first reading ^{[12, p. 4]}.

The next attempt to initiate legislative consolidation of the possibility of using an inheritance contract in domestic legal practice took place in 2016, when a group of 12 deputies of the State Duma, among whom it should be noted the already mentioned famous Russian jurist P.V. Krasheninnikov. Another draft law on making appropriate additions to the Civil Code of the Russian Federation was submitted. Based on the provisions contained therein, the testator is given the opportunity to conclude an agreement with a person who belongs to the circle of potential heirs, stipulating the process of transferring property rights to him after the death of the testator. At the same time, it was determined that the inheritance agreement may also contain conditions that establish the need for the heir to fulfill certain obligations.

The introduction of this draft law laid the foundation for the intensification of activities to form the necessary legal framework to ensure the practical use of such a legal instrument as an inheritance contract. This activity had a positive result in the adoption of Federal Law No. 217 dated July 19, 2018 "On Amendments to Article 256 of Part One and Part Three of the Civil Code of the Russian Federation". In accordance with it, Chapter 62 of the Civil Code of the Russian Federation was supplemented by Article 1140.1 "Inheritance agreement".

At the same time, according to many researchers, the norms on the inheritance contract contained in the Civil Code of the Russian Federation should have been denounced in the form not of a separate article, but of a separate chapter due to the fact that such an agreement is the same form of legal institutionalization of inheritance relations as inheritance by will and by law ^{[13, p. 35]}. The introduction of article 1140.1 into the chapter of the Civil Code devoted to the regulation of relations related to inheritance by will raises questions about its ambiguity with respect to the two forms mentioned above.

Speaking more specifically about the most significant aspects of the content of this article, it seems necessary, first of all, to note the following.

In the inheritance agreement, the parties to which are the testator and the person who may potentially be called upon to inherit, the circle of heirs and the procedure for transferring rights to the testator's property to them after the death of the latter are indicated. At the same time, it may impose on the participants the need to fulfill certain conditions that do not contradict the law, contain a provision on the executor, as well as determine the dependence of the consequences generated by the contract on certain circumstances. Commenting on these provisions, we note that some researchers pointed out the incorrectness of using the term "testator" in this context, since it can be applied to a person whose death has been confirmed or who has been declared dead ^{[14, p. 32]}. Based on this, E.A. Kazantseva considers it the most acceptable to designate the parties to the inheritance agreement with the terms "possible testator" and "potential heir" ^{[15, p. 22]}.

Other authors question the expediency of concluding an inheritance agreement, within the framework of which a third person is determined as the heir, since such a procedure can be carried out by drawing up a will ^{[1, p. 31]}.

After the opening of the inheritance, the persons defined in clause 2 of Article 1140.1 of the Civil Code of the Russian Federation have the right to demand the fulfillment of obligations established by the inheritance agreement. If his party renounces the inheritance, the contract remains in force on the terms specified in paragraph 3 of this article. At the same time, according to E.S. Putilina, these conditions, assuming the possibility of concluding a contract without taking into account the rights and obligations of the refused party, look rather vague ^{[16, p. 103]}.

Separate provisions of the article in question of the Civil Code of the Russian Federation regulate the specifics of concluding an inheritance agreement with the participation of spouses, in particular, related to the transfer of rights to common and personal property in the event of their death. The possibility of specifying which property is included in the inheritance of each of the spouses and the appointment of executors who perform their functions in the event of the death of each of the spouses is determined. The priority of the inheritance agreement regarding the joint will of the spouses, drawn up before its conclusion, is also noted.

Paragraph 6 of Article 1140.1 notes that an inheritance agreement is legitimate if it complies with the norms on the mandatory share in the inheritance and the prohibition of inheritance in relation to unworthy heirs.

An important difference between an inheritance contract and a will is that the will of the testator must be agreed with the other party, which finds expression in the obligation for both of them to sign it. At the same time, it provides not only for notarization of the contract, but also for video recording of the procedure for signing it, which, however, occurs in the absence of objections from its parties. A number of researchers in this context raise the question of the unresolved issue of the consequences of non-compliance with the norm for conducting such video recording ^{[17, p. 618]}.

It should be noted that the testator has the right to conclude several contracts with both one and different persons who may be called upon to inherit. Unlike a will, in case of contradictions between the provisions contained in them, the contract concluded before the others takes precedence.

Termination of the inheritance agreement or modification of the provisions contained therein may be carried out during the lifetime of its parties on the basis of their agreement, or a court decision rendered due to a significant change in circumstances, for example, related to the emergence of new potential heirs who are entitled to a mandatory share. However, undoubtedly, one should agree with the position of R.V. Belyaev, who considers it necessary to disclose at the level of documents of the supreme judicial bodies of the Russian Federation the substantive content of the concept of "significant change in circumstances" in relation to the specifics of relations regulated by an inheritance contract ^{[18, p. 44]}.

The testator has the right to refuse to participate in the contract under consideration by notifying its parties, certified by a notary. However, he must compensate the other parties for losses caused by their participation in the performance of their contractual obligations. The right of unilateral refusal to participate in the inheritance agreement is also reserved for its other parties.

Special attention should be paid to the final provision of Article 1140.1, which provides the testator with the opportunity to dispose of his property, including by making transactions in relation to him, even if, as a result of such an order, the person who may be called upon to inherit the rights to this property. Commenting on this provision, some authors note its disciplining nature in relation to the actions of the acquirer ^{[3, p. 233]}, while others point to the emergence of a clear imbalance in relation to the legal status of the parties to the inheritance contract as a result of the implementation of such an approach ^{[1, p. 36]}.

At the same time, in notarial practice, there is a fairly broad interpretation of the content of such powers of the testator, up to the possibility of making a will by him, which modifies the provisions contained in the inheritance contract ^{[19, p. 116]}.

In this context, it is very useful to take into account the positive aspects of legislative regulation of the use of the inheritance contract mechanism in a number of foreign countries, providing for the protection of the interests of both parties.

For example, the Latvian Civil Law restricts the testator's ability to dispose of movable property, which acts as the subject of an inheritance contract, to "reasonable limits", and the alienation of immovable property is possible only with the consent of the heir. In the case of alienation of movable property in order to deprive the heir of the rights granted to him by the inheritance agreement, the latter is entitled to challenge such transactions or demand the establishment of guardianship over the testator.

In turn, the German Civil Code provides for the heir to have the opportunity, within three years after his entry into inheritance rights, to demand the return of the property transferred by the testator to someone if this was detrimental to the interests of the heir ^{[20, p. 350]}.

In general, summing up the results of the analysis, it should be stated that the legislative consolidation of the institution of an inheritance contract provides the testator with the opportunity not only to dispose of his property, but also to link this with the imposition on the heir of the obligation to perform certain actions. However, on the other hand, the model of the relationship between the parties to the inheritance agreement implemented in domestic legislative practice allows us to speak about their not completely equal position. Such a circumstance, as well as a number of legally ambiguous points noted in this article, necessitate further improvement of the domestic regulatory legal framework governing various aspects of the conclusion and execution of an inheritance contract.