“Never say that you know a person
if you have not divided an inheritance with them”
(Johann Kaspar Lavater,
Swiss writer, poet, and philosopher).
Time has accelerated its pace: years pass by like days, and days fly by so quickly that you hardly notice them. Everything around us is changing rapidly, but the human desire to live in happiness and prosperity has remained unchanged throughout the centuries.
Confidence in the future, the belief that what has been earned and accumulated will “serve” children, and possibly grandchildren, is also an understandable human desire.
What opportunities does the law provide for the realization of all of the above? Naturally, we are talking about inheritance law. In Uzbekistan, expressing one’s will by leaving orders regarding one’s property in case of death is not as popular as, for example, in European countries. Perhaps, the reason lies in the traditional patriarchal way of life, habitual for the people, where the word of a man – the head of the family – has supreme power and does not require legal formalization.
At the same time, currently, issues related to inheritance have begun to arise much more frequently in our law firm’s practice than before.
The current Civil Code of the Republic of Uzbekistan provides for two grounds of inheritance: by will and by law.
The legislation of some countries provides for another type of inheritance – an inheritance contract, which originally has German origins. Its presence in the inheritance law systems of Austria, Switzerland, Hungary, Latvia, and some other countries is explained by the adoption of German law in the late 19th – early 20th centuries.[i]
In the Russian Federation, the provisions on inheritance contracts introduced into the Civil Code of the Russian Federation have been in effect since June 1, 2019.
Let us consider in this article what an inheritance contract is and whether it will be convenient and demanded by potential inheritors in Uzbekistan. We will proceed from the norms of Russian law, as the Civil Code of the Russian Federation is the closest to our Civil Code in terms of its content.
First and foremost, an inheritance agreement is a transaction, and unlike a will, it is bilateral. While a will does not create any obligations for future heirs, an inheritance agreement requires future heirs to perform specific actions of both property and non-property nature, as well as follow the lawful instructions of the deceased.
The testator cannot impose conditions such as getting married or enrolling in a higher educational institution, as such conditions restrict the rights of the potential heir. It is interesting to consider how, in practice, a specific condition that limits an heir’s rights is established.
At the same time, the inheritance agreement does not in any way restrict the testator’s right to manage their property. According to paragraph 12 of Article 1140.1 of the Civil Code of the Russian Federation, after concluding an inheritance agreement, the testator retains the right to conduct any transactions regarding their property and otherwise dispose of it at their own will and in their own interest, even if such disposal deprives the potential heir of rights to the testator’s property. Any agreement stating otherwise is null and void. This means that, for example, a certain Uncle Timur could conclude an inheritance agreement designating his good neighbor and friend Alisher as the heir, and then later change his mind (for instance, sell the promised apartment), despite Alisher faithfully fulfilling the terms of the agreement and taking care of Uncle Timur.
Moreover, the aforementioned article stipulates that the testator has the right to conclude one or more inheritance agreements with one or several individuals who may be called to inherit. If the same property of the testator is subject to multiple inheritance agreements concluded with different persons, in the event of their acceptance of the inheritance, the inheritance agreement that was concluded earlier shall be applied. Incidentally, this is another difference between an inheritance agreement and a will: in cases of multiple wills, the one drawn up at a later date is considered valid.
The Civil Code of the Russian Federation provides for the right of the testator to unilaterally withdraw from the inheritance contract at any time by notifying all parties to the inheritance contract of such withdrawal. The notification of the testator’s withdrawal from the inheritance contract must be notarized. The notary who certified the notification of the testator’s withdrawal from the inheritance contract is obliged, in accordance with the procedure established by the legislation on notaries and notarial activities, to send a copy of this notification to the other parties of the inheritance contract within three working days.
It appears that “good friend and neighbor” Alisher may never receive an inheritance from Uncle Timur. However, an interesting legal provision comes into play: if the testator withdraws from the inheritance agreement, they are obligated to compensate other parties to the agreement for any losses incurred in connection with the execution of said agreement up to the moment when those parties receive a copy of the notification about the testator’s withdrawal from the inheritance agreement.
Unlike the inheritance contract, a will may be certified not only by a notary, but also by doctors, ship captains, heads of expeditions, commanders of military units, heads of places of deprivation of liberty; there is a similar provision in the Civil Code of the Republic of Uzbekistan.
The compulsory share in inheritance, prohibition of inheritance by unworthy heirs – all this is valid in the same way as if the testator had left a will.
The Civil Code of the Russian Federation stipulates that an inheritance agreement involving spouses, as well as persons who may be called to inherit from each spouse, can determine the procedure for transferring rights to the spouses’ joint property or the property of each spouse in the event of their death, including simultaneous death, to the surviving spouse or other individuals. The agreement can specify the property included in the inheritance estate of each spouse, provided this does not violate the rights of third parties. It may also contain other instructions from the spouses, particularly regarding the appointment of an executor or executors who would act in the event of each spouse’s death. If such an inheritance agreement is concluded, the rules pertaining to testators shall apply to the spouses.
There is a view that the structure of an inheritance contract is convenient for spouses as future testators and is particularly relevant in cases of subsequent marriages when there are children from previous marriages. The legislator has provided that the inheritance contract becomes void if the marriage is dissolved before the death of one of the spouses, as well as if the marriage is declared invalid.
With all of the above in mind, it should also be noted that, according to Paragraph 1 of Article 1118 of the Civil Code of the Russian Federation, the rules of the Civil Code concerning wills apply to inheritance agreements, unless otherwise dictated by the nature of the inheritance agreement itself.
It appears that there is no unified opinion among Russian colleagues regarding the advantages and disadvantages of incorporating inheritance agreement provisions into inheritance law. These norms are likely to continue causing disputes and conflicting interpretations for a long time. It would be interesting to hear the views of practicing colleagues in this field. In our opinion, it is unequivocal that the inheritance agreement, as an additional tool in the realm of inheritance law, undoubtedly expands the testator’s possibilities in formalizing their will concerning the disposition of specific property, providing an opportunity to stipulate certain conditions desired by them.
Undoubtedly, the institution of an inheritance agreement is aimed at reducing the number of conflicts within families and ensuring the implementation of property inheritance arrangements.
Our legislators have the opportunity to consider introducing inheritance agreements into Uzbek legislation, taking into account the practical experience of applying such agreements in other countries. This would significantly simplify the process and reduce the likelihood of disputes in interpreting and applying the relevant legal norms.
[i] Inheritance Contract: An Approach to Continental Law // Law. Journal of the Higher School of Economics. 2020. No. 2. P. 105-129
The amendments to Uzbekistan's legislation, which introduced the concept of "Abuse of Law" into the Tax Code, are currently causing many questions and ambiguous interpretations. In accordance with Article 14 of the Tax Code of Uzbekistan: if a taxpayer performs operations or a series of operations, the sole or primary purpose of which is to obtain an unjustified tax benefit in the form of non-payment or reduction of taxes owed, such actions are considered an abuse of rights for the purposes of this Code.
"Never say that you know a person if you have not divided an inheritance with them" (Johann Kaspar Lavater, Swiss writer, poet, and philosopher). Time has accelerated its pace: years pass by like days, and days fly by so quickly that you hardly notice them. Everything around us is changing rapidly, but the human desire to live in happiness and prosperity has remained unchanged throughout the centuries. Confidence in the future, the belief that what has been earned and accumulated will “serve” children, and possibly grandchildren, is also an understandable human desire. What opportunities does the law provide for the realization of all of the above? Naturally, we are talking about inheritance law. In Uzbekistan, expressing one's will by leaving orders regarding one's property in case of death is not as popular as, for example, in European countries. Perhaps, the reason lies in the traditional patriarchal way of life, habitual for the people, where the word of a man - the head of the family - has supreme power and does not require legal formalization.
