In today's article, we will deal with the civil law institution of the protection of the entitled heir. In addition to the definition of this concept, we will also focus on the consequences that the law associates with the use of this institute and we will also bring readers interesting insights from court practice.
The institute of the protection of the entitled heir is provided for in Sections 485 to 487 of Act No. 40/1964 Coll. of the Civil Code. In practice, its application comes into play when the inheritance has been confirmed to a non-genuine heir, even though there were heirs by will or by operation of law. It is in fact a protection of the right of ownership of the entitled heirs, with the difference that while the right of ownership is not time-barred, the right of the entitled heir to the delivery of the inheritance against the unlawful heir is time-barred[1].
In the case of the right of an entitled heir to the inheritance, the Civil Code specifically regulates the beginning of the limitation period, which starts to run from the date on which the decision concluding the inheritance proceedings becomes final (§105 of the Civil Code).
Rightful vs. wrongful heir
The institution of the protection of the rightful heir provides legal protection to a person who, at the time of the testator's death, should have been the heir of his estate (whether by will or by operation of law), but the court failed to act with that person in the succession proceedings, confirming the inheritance to the wrongful heir. Thus, the wrong heir will be a person who, according to the decision of the succession court, has acquired the testator's property, although according to the law of succession he should not have acquired it at all, or not to the extent that he acquired it [2].
Claims arising from the protection of the heir entitled
The Civil Code, in applying this institute, grants certain rights to both the entitled and the non-entitled heir. At the same time, it also provides legal protection to the person who has acquired the property from the wrongful heir in good faith.
The claims of the entitled heir consist in the fact that if, after the hearing of the succession, it is established that someone else is the entitled heir, the heir who has acquired the succession is obliged to give to the entitled heir the property which he has from the succession, according to the principles of unjust enrichment, so that this unjust heir does not benefit from the property to the detriment of the entitled heir (Art.485(1) of the Civil Code).
In the case of an irregular heir, his claims vary depending on whether he was in good faith when he acquired the inheritance or whether he knew or could have known that someone else was the entitled heir.
A bona fide non-heir (i.e. one who did not know and could not have known that someone else was the entitled heir) is entitled to reimbursement from the entitled heir for the costs he has incurred for the property acquired from this inheritance, while at the same time he is also entitled to the benefits of the inheritance.
However, if this non-genuine heir was reckless (and thus knew or could have known that someone else was the entitled heir), he is only entitled to reimbursement of the costs necessarily incurred for this property, while at the same time the provisions of the Civil Code oblige him to give the benefits of the inheritance to the entitled heir in addition to the inheritance itself.
Nemo plus iuris versus the protection of a bona fide transferee from an unlawful heir
In practice, the question may arise as to what if the non-heir has transferred the ownership right to the property so acquired to another person before he was found to be a non-heir. In general, the Slovak Civil Code is based on the principle that no one can transfer more rights to another than he himself has(lat. nemo plus iuris ad alium transfere, potest quam ipse habet) when transferring and acquiring the right of ownership.
However, in the case of the protection of a legitimate heir, the Civil Code expressly provides for an exception to this principle, the decisive factor being whether or not the person who acquired the property from the wrongful heir was bona fide at the time of acquiring the property. Under Article 486 of the Civil Code, the ownership of such a bona fide acquirer enjoys the same degree of legal protection as if it had been acquired from a legitimate heir, and the protection of the right of ownership of the property so acquired may be sought erga omnes by the bona fide acquirer, for example, by means of an action in equity.‖
From case law
Judgment of the Regional Court Trenčín, Case No.: 17Co/95/2012 of 09.05.2012:
"Theobligation of a non-heir to deliver an inheritance to a true heir is governed by the principles of unjust enrichment. Thus, first and foremost, restitution in kind, that is to say, restitution in kind, i.e. restoring the situation as it would have been if the true heir had acquired the inheritance, and only if that is not well possible should pecuniary compensation be granted to the true heir."
Judgment of the Regional Court of Banská Bystrica, file no.: 16Co/41/2021 of 18.11.2021:
"The applicant was a party to the succession proceedings of the testatrix, in which he was informed that the testatrix had died leaving a will in favour of another person - the testamentary heir - the defendant, and the applicant, as a party to the succession proceedings, did not contest the invalidity of the will. The applicant ceased to be a party to the succession proceedings after he had become acquainted with the will and had declared that he agreed to it. The claim of the intestate heir is part of his right of succession and must therefore be raised in the succession proceedings. A prerequisite for the procedure under Section 485 CC is that the decision on the succession has become final. Only a person who should have had the status of heir in the succession proceedings but who, for various reasons (e.g. because his residence was unknown, a will was subsequently found), had the succession settled without him and the acquisition of the inheritance was confirmed to another person or was confirmed to him in a larger share than he was entitled to. In the majority of cases, application practice considers only a person who was not a party to the inheritance proceedings to be a legitimate heir for the purposes of Section 485 CC. In the Court of Appeal's view, such a conclusion, although marked by a formalistic approach, corresponds to Article 485(1) of the Civil Code, which imposes an obligation on the person who has acquired the inheritance to deliver to the heir entitled to the inheritance the property which he has from the inheritance only if the hypothesis of the legal norm is fulfilled, namely that someone else is found to be the heir entitled to the inheritance after the inheritance has been settled. In the present case, it was not established after the hearing of the succession that someone else was the heir entitled. In so far as the applicant considered that the will was invalid, he should have sought the relative invalidity of the will in the succession proceedings and not the delivery of the inheritance to the heir entitled under Article 485 of the Civil Code after the final conclusion of the succession proceedings."
Procedural exercise of the rights of the entitled heir
The Supreme Court of the Slovak Republic has previously dealt with the assessment of the question of which of the legal means for the protection of subjective rights should be used, while in the resolution Case No.: 6Cdo/111/2017 of 25.04.2018 stated that "since the adoption of the Civil Code is the exclusive legal means of protection of the entitled heir, expressly regulated in § 485 of this legislation , an action for the delivery of the inheritance (hereditatis petitio), and there has been no doubt in judicial practice that by its nature it is an action for performance or for delivery".
For more information, or if you need to exercise your rights under the protection of the rights of the entitled heir, please do not hesitate to contact us at: info@grandoaklaw.com.
[1] FEKETE, I.: Civil Code2. Veľký komentár, Bratislava : Eurokódex 2011, p. 1375.
[2] Ibid.
