NOTARIAL SECRECY OF INHERITANCE: balance of rights of heirs

Опубликовано: 18.11.2020

Our country is now in the period of its development when both external and internal factors lead to increased competition in the business environment. 30 years of independence, during which the national leaders accumulate primary capital, we celebrate in the conditions of war in the East of the country. Global and local economic crises, lockdowns against the background of the spread of deadly viruses are those adverse factors that significantly affect the characteristic of capitalism – to grow and build wealth. Under such conditions, the enrichment of one can occur only through the deterioration of the financial condition of the rest. This has been observed recently in the legal practice of KAC group.

The support of corporate conflict projects for our clients has led to an interesting conclusion about the growing trend of using family members and former family members for the purpose of unfriendly takeovers, or for the destruction of competitors.

Below is a rather special material prepared by our lawyer Volodymyr Sytnik, which concerns the rights of heirs to get acquainted with the materials of the inheritance case filed by a notary. At first glimpse, the right of each of the heirs to be aware of what property and rights the deceased owned, what succession estate was formed, what documents for the inheritance case file were submitted by the rest of the heirs is seems to be legal and logical. Simultaneously, the analysis of the situation will provide the opportunity to correct possible mistakes and will allow the heirs to use their right to submit the petitions, statements, to search property and money, to include in the succession estate objects that has not been added before. However, practical situations demonstrate the constant practice of notaries to block the access to the materials of inheritance case file in the interests of the person who initiated the inheritance case, under the guise of notarial secrecy. Judicial practice of Ukrainian courts on appealing against a notary’s refusal to provide hereditary materials is quite controversial, but it depends on the specific circumstances of the case and often leads to a positive result under a competent approach. Volodymyrs analysis is given below.

 

Regarding the right of the heirs to have access to the materials of the inheritance case file

Legislation:

According to Article 32 of the Constitution of Ukraine every citizen shall have the right to have access to the information about himself/herself possessed by public authorities and bodies of local self-government, institutions, and organisations unless such information is considered a state or other secret protected by law.

Article 8 of the Law of Ukraine “On Notaries” establishes the notarial secrecy. Notarial secrecy is a set of information which was received during the performance of a notarial act or during applying to a notary, including information about a person, his/her property, personal property and non-property rights and obligations etc. Certificates of notarial acts and copies of documents kept by a notary shall be issued exclusively for individuals and legal entities on whose behalf or in respect of whom notarial acts were performed.

According to Article 5 of the Law of Ukraine “On Notaries” the notary is obliged to assist individuals and legal entities in exercising their rights and protecting their legitimate interests, to explain their rights and obligations, to warn about the consequences of notarial acts so that legal ignorance cannot be used to their detriment; to keep information received in connection with the performance of notarial acts as a secret.

Judicial practice:

  • Court of Appeal of Sumy City (judgment of 09.04.2020), which upheld the decision of Lebedyn District Court of Sumy Oblast (Region) of 17.02.2020

https://reyestr.court.gov.ua/Review/88734897

The Court of Appeal confirmed the right of the heir to get acquainted with the materials of the inheritance case file.

According to the panel of judges, the requirement to follow the notarial secrecy primarily means the exclusion of conditions under which the content of the notarial act may be open for individuals other than its participants.

Arguments of the appeal that the inheritance case file contains information about other persons than the heir PERSON_1, in particular, information about another heir of the deceased PERSON_2 – her daughter, as well as information from the Unified State Demographic Register, State Register of Civil Status, United State Register of Legal Entities, Individual Entrepreneurs and Public Organizations of Ukraine, other unified and state registers of Ministry of Justice of Ukraine cannot serve as a legal ground to dismiss claims.

In addition, the panel of judges considers the fact that when providing the applicant with the materials of the inheritance case file, the private notary is not deprived of the opportunity to protect personal data of other individuals who are not participants of the notarial act, and to protect the information that does not relate to the applicant’s rights to inheritance.

At the same time, it should be taken into account that circumstances defined by law as grounds for the realization of inheritance rights, in particular, the list of succession estate or the grounds for inheritance cannot constitute a notarial secrecy for participants of the notarial act.

Assertion of the Defendant that the Plaintiff, as the heir, personally submitted the documents which were necessary for the inheritance acceptance, so he has already got acquainted with them, cannot be grounds for dismissing a claim, as this circumstance does not deprive him of the right to have access to the materials of the inheritance case file.

Therefore, the Plaintiff’s rights shall be the subject to judicial protection, considering the panel of judges confirmed that the Defendant violated the Plaintiff’s rights to obtain information contained in the inheritance case file and relating to his (Plaintiff’s) inheritance rights.

Please note that in this case there is a decision of the Civil Cassation Court within the Supreme Court of 15.05.2020 on the commencement of cassation proceedings. The legal ground is the absence of legal opinion of the Supreme Court on the application of Article 8 of the Law of Ukraine “On Notaries” in similar legal relations. However, according to the Unified State Register of Court Decisions and “Ukrainian Judiciary” official web-site, there are no further decisions in this case or any information on the progression of the case in the Civil Cassation Court.

  • Pechersk District Court of Kyiv City (judgment of 25.01.2017)

https://reyestr.court.gov.ua/Review/64360590

The court quoted Article 8 of the Law of Ukraine “On Notaries” and indicated that certificates of notarial acts and copies of documents kept by a notary shall be issued exclusively for individuals and legal entities on whose behalf or in respect of whom notarial acts were performed.

Given the above, the court concluded that the law provides for a certificate issuance procedure, rather than the procedure of providing the access to the archival documents.

Moreover, the court assessed the fact that the inheritance case file includes personal information provided by other heirs, which is also the subject of notarial secrecy, and the notary should protect this information under the law. Thereby, providing the access to such documents violates the rights of other persons who applied to a notary.

  • Tetiiv District Court of Kyiv Oblast (Region) (judgement of 12.03.2015)

https://reyestr.court.gov.ua/Review/43101481

The court considered the claim on illegal actions of the Head of the Tetiiv State Notary Office of Kyiv Oblast (Region), which consisted of collecting the Plaintiff’s personal data (notarial secrecy) and disclosing the personal data to third parties.

The Plaintiff was convinced that the notary exceeded her authority by requesting from technical inventory office confidential information about her (Plaintiff’s) property and subsequently providing this information to third parties without her consent.

The notary stated that she opened an inheritance case after one of the heirs of the first line of inheritance PERSON_6 submitted an application for acceptance of inheritance. The other heir was the Plaintiff (wife of the deceased). The request to the technical inventory office was made on the basis of a written application of the representative of PERSON_6 in order to determine the ownership of the house, where the testator lived before passing away. From the provided response the notary found out that the Plaintiff has the joint ownership of this house with the testator. Therewith, the notary should inform all of the heirs about succession estate.

The court concluded that since the notary public has established that the house is the joint property of the spouses, the notary lawfully provided the heirs of the first line of inheritance with information on succession estate. The notary public acted within her area of competence and did not commit any illegal acts regarding the collection and disclosure of Plaintiff’s personal data.

Conclusion:

Consequently, the Ukrainian legislation does not explicitly enshrine the right of heirs to get acquainted with the materials of the inheritance case file or the obligation of the notary to provide the access to the materials of the inheritance case file. The main argument of notaries against providing such information or documents for familiarization is that the inheritance case file contains personal information provided by other heirs.

The legal opinion of the Supreme Court on the application of Article 8 of the Law of Ukraine “On Notaries” in similar legal relations does not exist yet (a case with similar circumstances is currently pending before the Civil Cassation Court within the Supreme Court).

Among district courts there are contradictory and even directly opposite conclusions regarding the provision of information to the heirs about the materials of the inheritance case file.

At the same time, the existing practice of courts of appeal demonstrates that the list of succession estate or other circumstances which serve as a legal ground for the realization of inheritance rights, cannot constitute a notarial secrecy for participants of the notarial act.

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