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Section 20. Jurisprudence
Ashkalov David Socratovich, Krugova Yekaterina Igorevna, 4th year students of FSBEI of Higher Education "Saratov State Academy of Law" E-mail: krugowa.katerina@yandex.ru Gavrilov Vladimir Nikolaevich, Cand. Sc. (Law), associate professor, professor, at the Department of the Civil Law
HEREDITARY SUCCESSION LAWS OF AUSTRIA AND RUSSIAN FEDERATION
Abstract: In this article the authors explores the hereditary succession laws in Austria and Russian Federation. The legislation these countries is analyzed regarding similarities and differences in the law of succession. Keywords: right of inheritance, jurisprudence, cases of legal succession.
Both Russian and foreign legislations distinguish two types of hereditary succession: testamentary succession and legal succession. Legal succession is an essential institution of Inheritance branch of the Civil Law. Historically speaking, legal succession was practiced before testamentary succession. Fundamental principles of legal succession were developed as far back as in legislation of Ancient Rome. Certain succession aspects of Roman private law were reflected in modern civil legislation. That is why legal systems of different countries have similar features in regards to that field of law.
Ancient Roman law distinguished three classes of heirs. The first and most important class was heredes sui, or «his heirs», i.e. those people who were subject to the immediate power of the deceased (his wife, children and grandchildren). The next class was agnatus proximus: the persons who lived in a house of paterfamilias (his mother and siblings). Lastly, there were gentiles, i.e. persons belonging to the same clan as the deceased.
The Civil Code of Austria [1] contains specific cases of legal succesion (fully or partially), namely: if the deceased didn't leave the last will; if in the last will the deceased hasn't disposed of all their property; if in their last will they didn't mention in an orderly manner those individuals who have the right to a part of inheritance by operation of law; or if an heir has no possibility or intention to accept their inheritance.
Legal succession of all the property of the deceased or a part of it in conformity with the Civil Code of the Russian Federation [2] is possible not only on condition of absence of the last will, as is stated by prof. V. V. Gushchin [7, p. 98.] (similar
inaccurate statement is made by prof. G. G. Cheremnykh [7, p. 99, 117, 122.]), but in many cases also if the will was made. Such include instances when:
1) all legal heirs were disinherited by the deceased with no mention of other heirs (Art. 1119 of the Civil Code of the Russian Federation);
2) the only existing last will is held by court to be invalid, wholly (absence of legally valid last will) or partly. In accordance with Para. 4 of Art. 1131 of the Civil Code of the Russian Federation the part of inheritance, in respect of which the last will is held invalid by the court, is inherited legally;
3) the last will is incomplete (Art. 1120 of the Civil Code of the Russian Federation) i.e. "partial testament" - so called partial succession, when only a part of the testator's property is included in the last will; the part that is not included will be inherited legally. In this case, a testamentary heir, who is also a legal heir, is summoned together with other legal heirs to inherit a part of the property that is not included in the will;
4) the heir by testament died earlier or simultaneously with the testator, or the property was bequeathed to a legal entity that does not exist at the time of opening the inheritance (Pt. 2 Para. 1 Art. 1116 of the Civil Code of the Russian Federation), and the testator did not leave instructions for this case (Para. 2 Art. 1121 of the Civil Code of the Russian Federation); the heir did not accept the inheritance or refused it, and in the will there was no reservation that all the property of the testator was bequeathed to the heirs assigned by him (Para. 1 Art. 1158 of the Civil Code of the Russian Federation);
Section 20. Jurisprudence
5) in the will the testator violated the requirements of Art. 1149 Civil Code of the compulsory portion;
6) the only or all testamentary heirs were removed from the inheritance as unworthy in accordance with Art. 1117 Civil Code of the Russian Federation [4].
It should be noted that there are no discrepancies in cases of legal succession in Russian and Austrian legislation.
In accordance with Austrian legislation, the individuals who are encouraged to inherit within the framework of legal succession include a spouse of the testator and his/ her next-of-kin. These persons are divided into four lines of heirs. The first includes the children of the testator and their descendants. They are entitled to the entire inheritance. They can be either male or female. Several children divide the inheritance equally. Grandchildren from the living children of the testator do not have the right to inherit. This means that only if the testator's child died before him, then his share is entitled to the testator's grandchild (the so-called inheriting per stripes). Similarly, the law works with respect to great-grandchildren [1].
The second line of heirs includes parents of the testator and their descendants. If both parents are alive, they are entitled to equal shares of inheritance. If one of them died, then his share goes to his descendants. If both parents of the testator died by the time the inheritance is opened, the share of the testator's father is distributed in equal shares among his remaining children and their descendants, and the share of the testator's mother is distributed in equal shares among her remaining children and their descendants. If these parents do not have other children, except for their common children or their descendants, then they distribute the two parts equally among themselves. However, if, in addition to these children, there are descendants of the father or the mother separately, or children born to one of the parents in another marriage, then the children born jointly to the father and the mother of the testator (or their descendants) receive the inheritance due to them from both the father's and the mother's half of the share, in equal parts, along with their siblings born separately to the father and/or the mother of the testator. If one of the deceased parents of the testator has left no descendants, the inheritance is fully due to the other still living parent. If both parents of the testator are deceased, the entire inheritance is distributed between their descendants according to the rules already given [6, p. 73.].
In accordance with Russian legislation, the first line of heirs includes children, parents and spouse of the testator (Art. 1142 of the Civil Code of the Russian Federation). In the civil law of Austria, these heirs belong to the first and second lines, as well as their descendants. Siblings of the testator are included into the third line of heirs according to the Civil
Code of the Russian Federation (Art. 1144), while the Civil Code ofAustria includes them into the second line along with the parents of the testator [2].
The heirs of the third line include grandparents of the testator and their descendants. In this case, the inheritance is divided into two equal parts, one ofwhich is due to the parents of the mother, and the other to the parents of the father of the testator. If one of them is deceased, then his share goes over to their descendants. The Civil Code of the Russian Federation, however, includes the grandparents of the testator into the second line of heirs (Art. 1143 of the Civil Code of the Russian Federation).
The fourth line includes great-grandparents of the testator. It is noteworthy that in the absence of any heir, their share goes over not to their descendants, but is distributed among other living descendants. In this case, there is no discrepancy between the Civil Codes of the Russian Federation (Art. 1145) and Austria. But, in addition to that, the Civil Code of the Russian Federation allocates four more lines of inheritance: the fifth - descendants of nephews and nieces, as well as siblings of grandparents of the testator; the sixth - descendants of grandchildren, cousins and first cousins once removed of the testator; the seventh - stepchildren and stepparents of the testator (Art. 1145 of the Civil Code of the Russian Federation); the eighth - one of two groups of the disabled dependents of the testator. Austrian law avoids such complexity and relates them to the heirs of the first, second and third line. Moreover, the Civil Code of Austria does not allocate such a category as the disabled dependents of the testator.
In this case, speaking of the Russian hereditary law order, we are dealing with a certain influence of German system of inheritance, where the categories of heirs and the order in which they claim their inheritance is determined by the so-called parentels. A parentel (or parentele) is a group of blood kin originating from a common ancestor and his descendants [3, p. 5.]. In the inheritance law ofAustria parentels are limited to great-grandparents, who are able to inherit as heirs of the fourth line; however, this group doesn't include their descendants (§ 731, 741 of the Civil Code of Austria).
Deprivation of multiple great-great-grandparents of the testator and their descendants of the status of heir in Russian inheritance law is partly explainable. The legislator, most likely, considered the possibility of great-great-grandparents or great-grandparents of the testator being still alive to be min-iscule, but hypothetically speaking this possibility still exists, and it would be unjust to exclude it.
The distribution of relatives of one degree of kinship into different lines of heirs can also be seen as unjust. As a result of such an approach, the testator's uncles and aunts, as relatives of the third degree of kinship, are included into the third line
of heirs, but the testator's grandparents, who are at the same Russian civil law, and the so-called domestic partners have
degree of kinship, are included into the fourth line of heirs. virtually no right to inherit unless indicated otherwise by the
This problem is not solved neither in Austrian nor in Russian testator.
legislation. Thus, despite both legal systems belonging to the conti-
The novelty of the Austrian civil law (in effect from Janu- nental system of law, they still have a number of significant
ary 1, 2017) was granting an exclusive right to inherit to the differences. The Austrian law of inheritance, in its turn, has cohabitants of the testator in the absence of testamentary or recently been in the process of transformation due to necessity
legal heirs. Such a situation is not recognized in the current to bring it in line with the standards of the European Union.
References:
Legislation:
1. Civil Code of Austria, dt. 01.06.1811 (as amended on 27.07.2010). Consultant Plus CALR service. Available at: URL: http://www.consultant.ru/cons/cgi/online.cgi?base=INT&n=56057&req=doc#08162755191963551 (Accessed 05.04.2018).
2. Civil Code of the Russian Federation (pt.3) as amended on November 26,- 2011. Federal law - No. 146. (as amended on 28.03.2017) // Official gazette dt. 03.12.2001,- No. 49, Art. 4552; Official gazette dt. 03.04.2017,- No. 14.- Art.- 1998.
Bibliography:
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4. Gavrilov V. N. Nasledniki po zakonu i poryadok prizvaniya ikh k nasledstvu po rossiyskomu i zarubezhnomu zakonodatel'stvu [Legal heirs and the procedure of their inheritance in Russian and foreign legislation] // Nasledstvennoe pravo.- 2011.-No. 2.- P. 13-16.
5. Kirillovykh A. A. Voprosy nasledovaniya v prave inostrannykh gosudarstv [Institute of inheritance in foreign legislations]. //Advokat.- 2010.- No. 10.- P. 71-80.
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