Babiuk P. Limits of exercising subjective succession rights: a comparative analysis of the legislation of Ukraine and other European countries

Українська версія

Thesis for the degree of Doctor of Philosophy (PhD)

State registration number


Applicant for


  • 081 - Право. Право


Specialized Academic Board

ДФ 26.500.011

Academician F. H. Burchak Scientific Research Institute of Ргіvаtе Law and Entrepreneurship of National Academy of Law Sciences of Ukraine


Section 1 consists of three subsections, which provide a general theoretical description of subjective succession rights, reveal their legal nature and content, define the concepts and features of the exercise of these rights and the limits of their exercising. The division of European countries into two groups, depending on the legislative model of regulation of relations in the succession field is committed. The general theoretical characteristics of the right to a will and the right to inherit as the most important categories of subjective succession rights are given. The author's definition of the right to a will is formulated. The concept of exercising of subjective succession rights is formulated by the author as the commission of specific acts by the discretion of the authorized person within the powers within the scope of the subjective rights. The limits of subjective succession rights and the limits of their exercising are distinguished. Section 2 of the dissertation, which contains three subsections, focuses on the comparative legal analysis of the limits of the right to make a will from the standpoint of statutory requirements for the form of the will, its content, and provisions aimed to ensure the property interests of family members and close relatives of the testator. The expediency of introducing into the legislation of Ukraine a simple written form of a will (holographic will), written and signed by the testator, is substantiated. In the future, with the introduction of electronic notary system, it will be appropriate to enshrine electronic wills in the national legislation of Ukraine. Based on the expediency of providing the testator with the widest possible opportunities to determine the fate of his property after death and taking into account the positive experience of legal regulation of inheritance by will in a number of European countries, the expediency of enshrining the institution of appointment of the remainderman. The expediency of expanding the scope of application of the condition in the will, which may relate not only to the appointment of the heir, but also the testamentary refusal (legacy), as well as the substitution. Section 3 of the dissertation is devoted to the limits of the right to inherit under the laws of Ukraine and other European countries. This section consists of two subsections, which analyze, respectively, the methods and terms of the exercising of right to inherit. The author pay attention to the fact that from the standpoint of the Civil Code of Ukraine the question of how to accept the inheritance should be decided not only depending on the nature of the heir's behavior (active or passive), but tied to a certain circle of heirs. For the right to direct renunciation of the inheritance the law sets special limits for its exercising, which are to determine the range of persons in whose favor such a renunciation may be made. Thus, the author proposed to clarify the name of Art. 1274 of the Civil Code of Ukraine. Supporting the position that the legal consequences caused by the renunciation of the inheritance do not occur from the moment of its commission, but after the finish of duration of the term for acceptance of the inheritance, a number of changes to Art. 1270, 1273 of the Civil Code of Ukraine. In the context of distinguishing between general and special terms of acceptance of inheritance, the author formulates a position on the expediency of expanding the scope of special term for acceptance of inheritance due to the case when a person's right to inherit depends on divest from inheritance of another heir (heirs). The dissertation notes that the legal regulation of the terms of exercising the right to inherit in different European countries differs and depends, first of all, on what system of exercising the right to inherit (system of acceptance or system of renunciation) is provided in the legislation of a particular country. The comparative legal study of the limits of subjective civil rights in the field of inheritance under the laws of Ukraine and other European countries allowed the author to formulate a number of scientific statements, generalizations and proposals presented in the conclusions to the work. Key words: limits of exercising subjective rights; inheritance, estate, heir, will, testator, testamentary refusal (legacy), acceptance of inheritance, renunciation of inheritance.


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