HEIR IN TAIL’S LITIGATION PROCEEDING IN THE CASE WHEN HIS INHERITANCE RIGHT IS BEING VIOLATED
If the testator decides to freely dispose of his property in a way that denies the right of inheritance to one of his close relatives, the same law, as opposed to the given freedom of the testator, gives the possibility to obtain reserved portion. It should be noted that the same reserved portion represents the specific part that the heir in tail would regularly inherit under the law, in case the testator left no will. The heir is universal heir, which means that he is entitled to a certain portion of any property or rights that are included in the estate. When talking about the realization of the right to the reserved portion, it should be noted that the reserved portion rule can be applied on request, but never officially.
When we speak of heirs in tail and their rights to the reserved portion it should be also noted that they may require the reserved portion only if they’re also heirs by the law. Consequently, it would mean that for example if we have grandchild of the testator, then he would not be the heir in tail if his father or the testator’s son is still alive, and accordingly the heir by the law of the testator.
Further, the heirs in tail can be classified into two categories, namely:
– Absolutely heir in tail which includes the testator’s descendants, his adopted children and their descendants, and his spouse, who as the heirs in tail are entitled to one half of the part the heir would regularly inherit under the law (for example, if we have a case in which the testator has a wife and two children, and he left a will that leaves his entire estate to a third person, the wife and children of the testator are entitled to obtain reserved portion (the ½ of the part the heir would regularly inherit under the law), or a spouse and children, each individually will get 1/6 on behalf of the reserved portion for a total of 3/6 or ½ of the entire estate. The second half of the estate belongs to the third person as the heir by the will)
– Relatively heir in tail include testator’s parents, adoptive parents and other ancestors (grandfathers, grandmothers, etc.), but only under the conditions that they are the heirs by the law, also permanently unable to work, without means of livelihood, and accordingly, their reserved portion is 1/3 of the part the heir would regularly inherit under the law
In cases where the testator disposes of more than he is allowed, inheritance right is being violated, such as in the cases when the total value of testamentary dispositions and / or value of gifts makes it impossible to the heir in tail to obtain the full value of his reserved portion.
The claim for reduction of testamentary dispositions may be filed within three years from the announcement of the will, and the claim for a gift return within three years from the testator’s death, ei from the date of final decision declaring the testator’s death or his death determination.
You lose the right to request the reduction of testamentary dispositions and the gift return after the expiration of the deadline, which means that the deadline is subject of the statute of limitation. As previously stated, the heir in tail will lose the right also when the inheritance proceedings have been completed within the three-year period, if he has not requested the reduction of testamentary disposition or gift return, despite he participated in inheritance proceeding.
Furthermore, when the inheritance right is being violated, testamentary disposition will be reduced, and gifts will be returned as needed to obtain the reserved portion. Therefore, the testamentary disposition shall be reduced, and only if reserved portion is not obtained, the gifts shall be returned starting from a final gift, the reverse order in which gifts are given. If gifts are given at the same time, return is in proportion.
In determining the total value of testamentary dispositions and gifts, into consideration are taken also disposals and gifts for which the decedent ordered not to count as the reserved portion. Only on the request of the heir in tail comes to reduction of testamentary dispositions and the gift return.
It should be noted that the right to request reduction of testamentary dispositions and gift return (the right to refute) is inheritable only if the heir in tail has already requested the reserved portion before his death