Article 1137 of the Civil Code of the Russian Federation. Testamentary refusal (current version)

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.

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.

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”).

Legislative regulation of legal relations arising during the implementation of a legacy

Legal relations between heirs and legatees are regulated by the section of the Civil Code of the Russian Federation devoted to the proper fulfillment of obligations between creditors and debtors. Only the person who has legal grounds to do so has the right to demand from the heirs the transfer of certain benefits.

The legatee has the right to receive a waiver only after the heirs have entered into the right of inheritance. An heir who has not accepted the inheritance is not obliged to implement the legacy established by the testator.

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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."

Examples

To make this term easier to understand, here are a few examples.

1. A woman owns an apartment. Her only son abuses alcohol and she is worried that after her death he will sell the apartment, spend the money and live on the street. On the advice of a lawyer, her niece became the heir to the property, and her son became the legatee with a lifelong right to reside in this apartment.
2. The man has two children. The daughter lives far from Moscow and does not want to return to her parents’ home, and the son lives with his father. The man does not want his house to be sold and the inheritance divided, and he does not want to deprive any of his children. The will is drawn up in favor of the son, and a requirement is made to purchase real estate for the sister in the area where she lives.

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 current Housing Code of the Russian Federation recognizes the right to use residential premises by testamentary refusal (Article 33 of the Housing Code of the Russian Federation) as a real right (it is placed in Section II “Ownership and other property rights to residential premises” of the Housing Code of the Russian Federation).

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).

Use of the received housing

Let's talk about the type of process in which the heir, within the limits of the will, is obliged to give the legatee the opportunity to use housing during his life or another period.

The right to use housing is considered one of the common forms of legacy.

A person living under the right of testamentary refusal has the right to demand state registration of the rights to use it.

Important! The period during which a testamentary refusal is valid, including a reference to the right to use housing, does not necessarily have to coincide with the life of the legatee. The legatee may begin to claim it from the moment the testator passes away, but it is possible to act as a subject of law only from the moment when the successor accepted the inheritance.

The Housing Code gives the purchaser of the legacy the right to use the housing for the period specified in the will . This means that the heir, who is the owner of the property, does not have the right to evict the recipient from it during the period established in the will.

Important! The period of use, which is defined in the will, is preclusive: upon its expiration, the subject’s rights to the residential premises expire.

A person who uses a dwelling on the right of refusal becomes the owner of the same amount of responsibility for the premises as the owner. This means that the costs related to the maintenance of the property are shared with the owner.

A resident who refuses has the right to carry out state registration of his right of use.

The process of the possibility of eviction of a legatee is determined by Article 35 of the Housing Code of the Russian Federation, and strong arguments are required for the court to make a positive decision.

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.

Summary

A testamentary disclaimer is a special type of document that reflects the last will of the testator regarding material assets. Within the framework of this document, all responsibilities for fulfilling the legacy are assigned to the beneficiary of the inheritance, who must ensure all the rights and interests of the beneficiary specified in this document. The format of such a refusal can be any, subject to compliance with the current legislation.

The holder of the legacy has the right to refuse to fulfill the terms of the testamentary document. All aspects of these documents are fully regulated by Russian legislation. You can obtain a testamentary refusal from the notary who drew up the will itself.

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.

Grounds for a legatee’s refusal to receive a legate

The right of a legatee to refuse to accept a legacy is guaranteed by Art. 1160 Civil Code of the Russian Federation. This standard provides:

• inadmissibility of using coercive measures against the legatee;
• free disposal by the legatee of his subjective rights.

A refusal in favor of another citizen or subject to prohibition by law may be declared invalid by the court at the request of interested parties. If the legatee refuses to accept the legacy, the obligation of the heirs to fulfill it ceases.

The exception is cases when the testator has appointed in the will another legatee, in whose favor the testamentary refusal is executed.

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

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.