Until an inheritance is declared escheated, no dispute over a right arises between a person who may be included in a particular class of heirs and the territorial community – SC CivCC Joint Chamber

The fact that a territorial community has an interest in the possible declaration of an inheritance as escheated does not indicate the existence of a dispute over a right with an applicant seeking to establish a legal fact in order to formalise their inheritance rights in separate proceedings. Until an inheritance is declared escheated, the community has no civil right to the inherited property; it merely performs the public duty imposed on it to apply to the court with the relevant application.

These conclusions were reached by the Supreme Court sitting as the Joint Chamber of the Civil Cassation Court, with a view to ensuring consistency in judicial practice.

In the case under review, the applicant applied to the court to establish the fact that they had lived as one family with the deceased for at least five years before the opening of the succession, in order subsequently to formalise their inheritance rights through notarial proceedings after the notary had refused to do so.

The court of first instance, whose decision was upheld by the appellate court, granted the application. Dissatisfied with the judicial decisions, the city council lodged a cassation appeal, arguing that a dispute over a right existed because one year had elapsed since the opening of the succession and the community had an interest in having the inheritance declared escheated. Accordingly, since a dispute over a right had arisen, it asked the court to leave the application unexamined.

The Joint Chamber of the Civil Cassation Court of the Supreme Court upheld the judicial decisions, dismissing the cassation appeal, and formulated the following legal conclusions, which must be taken into account by the courts (Part 4 of Article 263 of the Civil Procedure Code of Ukraine).

The Joint Chamber of the Civil Cassation Court of the Supreme Court explained that, following the amendments to Article 1277 of the Civil Code of Ukraine introduced by the Law of Ukraine of 22 September 2011, ‘On Amendments to Certain Legislative Acts of Ukraine Concerning the Regulation of Relations between Creditors and Consumers of Financial Services’, an application by a local self-government body to the court for an inheritance to be declared escheated constitutes the performance of a public duty imposed on that body, rather than the exercise of a right to inherit. A territorial community is not an heir and, until the inheritance is declared escheated, does not acquire a civil right to the inherited property.

Therefore, the territorial community’s interest, in itself, in the possible declaration of an inheritance as escheated, the expiry of one year from the opening of the succession, or the objection of a local self-government body to the establishment of a legal fact do not, in themselves, indicate the existence of a dispute over a right with the applicant. In separate proceedings, the local self-government body participates as an interested person and may submit evidence and explanations and object to the application; however, such procedural interest is not equivalent to a substantive-law dispute concerning the inherited property.

The Joint Chamber noted that the decisive factor in determining the procedure for hearing a case is whether the case is limited to establishing a legal fact necessary for the subsequent formalisation of an inheritance, or whether it in fact involves determining a dispute concerning a specific subjective right to inherited property. Establishing the fact of having lived as one family with the deceased does not, in itself, mean recognition of a right to inherit or a right of ownership of the inherited property; it merely confirms one of the prerequisites for the subsequent formalisation of inheritance rights.

It was precisely on the basis of this distinction that the Joint Chamber, in order to ensure consistency in judicial practice, departed from the approach set out in a number of previous judgments of the Civil Cassation Court of the Supreme Court. In those cases, the approach was that the territorial community’s interest in the possible declaration of an inheritance as escheated, the expiry of one year from the opening of the succession, and the objection of a local self-government body to the establishment of a legal fact could indicate the existence of a dispute over a right and, accordingly, preclude the application from being considered in separate proceedings.

Resolution of the Joint Chamber of the Civil Cassation Court of the Supreme Court of 7 September 2026 in Case No. 644/2440/24 (Proceedings No. 61-5490сво25) – https://reyestr.court.gov.ua/Review/139787332.

This and other legal opinions of the Supreme Court are available in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.