Inheritance of limited real rights in another person’s property by will

Abstract

This article examines the peculiarities of the inheritance of limited real rights in another person’s property by will. It elucidates the concept of a will and analyzes the provisions of the civil legislation of Ukraine governing the institution of limited real rights in another person’s property and the procedure for their inheritance. Particular attention is paid to the principle of testamentary freedom, which enables a testator to determine, at their own discretion, the legal fate of their proprietary rights, thereby giving priority to testamentary succession over intestate succession. At the same time, it is emphasized that testamentary freedom is not absolute and is limited by the legal nature of certain limited real rights in another person’s property.

It is substantiated that not all limited real rights in another person’s property recognized under Ukrainian legislation may constitute the subject matter of a testamentary disposition, owing to their legal nature. Particular attention is devoted to servitudes, as the possibility of their transfer by testamentary succession depends on the type of the respective real right. According to the criterion of the person in whose interest the servitude is established and its functional purpose, a servitude may be personal or predial (land). A predial servitude may pass by testamentary succession together with ownership of the immovable property as an element of its legal regime. By contrast, a personal servitude cannot constitute the subject matter of a will, since, pursuant to the Civil Code of Ukraine, it terminates upon the death of the person for whose benefit it was established.

The article emphasizes that the inclusion in a will of a disposition concerning limited real rights in another person’s property which, under the law, cannot be transferred by hereditary succession does not, in itself, constitute grounds for declaring the will invalid. In such cases, only the relevant testamentary disposition is invalid, whereas the will as a whole remains valid.

Special attention is also given to the analysis of the Draft Civil Code of Ukraine, which demonstrates a tendency towards expanding not only the catalogue of limited real rights in another person’s property but also the range of such rights that may be transferred by testamentary succession. This indicates a strengthening of the dispositive principles governing the inheritance of limited real rights in another person’s property by will.

Based on the findings of the study, the author formulates the criteria determining the possibility of the transfer of limited real rights in another person’s property by hereditary succession.