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The Lost heritage: the problem of protecting the rights of interested heirs

Last time the world becomes more globalized, people actively move in search of better or more interesting work, look for a more comfortable place for living or the country where their children can get great perspective in life. But such activity is popular among young people. People of ripe years over 50 years almost never change their place of residence if it is not due to some very important reasons: disasters, war, the need to care for relatives, etc. Thus, it appears that different generations of the same family may live at very large distances from each other and rarely communicate by phone or email, and as a result they lose contact. In fact, everyone can be aware of the general facts and events of the far away living relative’s life, but in particular, they have no any idea what exactly is going on in their life.

The realities of life are such that people die. Many of them left the heritage after the death, and often as larger the possible inheritance as more close relatives can be seen at the funeral. But the open the inheritance sometimes brings a lot of surprise to the audience when all the property is bequeathed to outsiders. And if in cases when all the property is bequeathed to persons who really helped the deceased the last years of his life, it is quite fair and reasonable, but in the case where the property is bequeathed to a person with whom the deceased was at the outs, this situation may shock.

So, in my legal practice there were the relatives who didn’t live with the testator recognized about the will in favor of third parties only when tried to apply for come into an inheritance by law. The situation was the following. When relatives lived abroad, the testator made the will in favor of his neighbor, with whom he always was at the outs, even, I would say more, this neighbor took the piss out of the testator. The attempts to dispute the will in the court are not always lead to positive results and the success of the case depends on many factors.

In the other case, the decedent had brain disease that became the cause of his death – it was atherosclerosis. But this diagnosis became known only after the thanatopsy. The decedent lived alone for a long time. He did not go to the doctor, he did not apply to doctors about disorders of consciousness and memory, headaches, etc. That’s why his medical documents of the period making the wills did not include any objective data about his health. Taking into advance the considerable term, from the time of making the will until the death when the atherosclerotic changes were find, during the first post- forensic psychiatric expert examination the expert also failed to answer the question, whether the decedent understood his actions at the time of the signing the will. In the case it was assigned to re-examination, the expert had to make a retrospective conclusion of the health status of the decedent at the date of signing the will, using only the history of the period preceding the death of the testator. The re-examination gave the testator was incapacitated in the period of making will. The success was achieved in only significant pre-trial consultations with psychiatrists, who helped to establish the actual mental state of the decedent. The case was heard more than 2 years.

The theory of another case is the following. In 2002 the mother had a fight with her daughter, who lived alone and far away from her mother. The mother made the will in favor of her friend without saying anything about this to her daughter. In 2005, his mother had the ill of the cancer. The daughter returned to Ukraine and took care of her mother. The mother had several operations. In 2011 her mother died and the will was fined. The court refused to recognize the daughter of will invalid because in 2002 there was no objective evidence of incapacity mother, and the fact that the mother became incapacitated in 2005 as a consequence of brain cancer court did not find sufficient evidence that, whether deceased operational in 2005-2011, she was able to cancel a will in 2002. That’s why the plaintiff filed the complaint to the European Court of Human Rights. Even if the ECHR found the breach of Article 6, the period of restoration of rights and justice will be very long.

The third case even had the circumstances of a crime. A lonely middle-aged woman lived, she could not have children, her parents died, her brothers and sister lived far away. The neighbors of lonely woman, using psychological vulnerability of woman (single, no children, ets.), began actively to involve her to joint vacation, which mainly consisted in drinking of alcohol. Over 2 years of this “holiday” the alcohol, it was banned for medical contraindications, killed the woman. After her death it was found that the decedent bequeathed her apartments to thus neighbors that “killed her”. And, again, due to lack of medical data about the alcoholism of the decedent, it was decided not to sue capacity died in the making of the will. It was decided to file the claim to the court to suspend the inheritance neighbors, on the grounds that they contributed to the deterioration of the decedent and hastening the time of her death. The case is heard in court nowadays. The predictions on the outcome of the case are not unique and depend on whether the expert establish the psychologist parasuicidal mood of the decedent or not. And again in this situation, if relatives knew about the problems in the family of the decedent, as a minimum, they would be able to save her life, and in the case of court evidence base, in particular alcoholism medical documentation about the deceased would have been more credible and cogent.

So now we have questions: how interested persons may control the situation around their elderly relatives? First of all and this advice is not legal, it is necessary to be aware of all family life events, etc. to help them, to care about their health. It will result in both a more trusting relationship between an older man and a relative, and also it will allow to have the evidence base for future court cases. Secondly, it is necessary to find legal mechanisms for resolving property issues with the property of elderly relatives, for example, to make a contract for the lifelong maintenance or make a hereditary contract at the conclusion of which to impose a burden on the property until death of an elderly relative. Third, you have to use the possibility to check the current status of property rights of older people to be able to respond quickly to any action with respect to the property.

If the interested persons learn about dubious will of the decedent after his death, they should as quickly as possible to find the lawyer who tells a list of necessary actions to prepare for trial on the recognition of the will invalid. In particular, it is necessary as quickly as possible to search all medical documents of the decedent, as the other party will try to destroy such documents, to search potential witnesses, etc.. If these actions cannot be done yourselves you should entrust the collecting of evidence to the lawyer through giving him the Power of Attorney. The success or failure of litigation depends on the efficiency of action by finding the evidence and collect information about the decedent and the circumstances of his life.

Author: Kydalov Igor

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Kydalov & Partners
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Publication Date: 30.10.2014
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