Part one of our series on the dispute that arises when heirs assert that the estate should also have included immovable property that is missing from it. Find out what type of action this is, when it can be brought, and why it is not a dispute arising out of the inheritance proceedings themselves.
We will devote a series of several articles to disputes over whether specific immovable property belongs to an estate. In this first part, we look at the nature of the action by which heirs seek a determination that immovable property belongs to the deceased's estate, or that the deceased was its owner at the time of death.
According to the currently prevailing decision-making practice of the courts and the legal literature, this is not an action for a determination of a legal fact (§ 137(d) of the Slovak Code of Civil Contentious Procedure), but a standard declaratory action under § 137(c) of the Slovak Code of Civil Contentious Procedure, for which an urgent legal interest must be demonstrated. There is no express statutory authorisation for classifying this action under § 137(d) of the Slovak Code of Civil Contentious Procedure. Moreover, a mere determination of a legal fact would have no significance of itself – in reality, this is an action aimed at determining a right to the estate.
(In legal theory there are also contrary views, according to which this is an action for a determination of a legal fact under § 137(d) of the Slovak Code of Civil Contentious Procedure, for which an urgent legal interest is not examined – these views proceed from the premise that no ownership right is determined in these proceedings.)
This action is used in situations where one or more heirs believe that the estate should also have included immovable property that is missing from the inventory of the estate's assets – most often because another person is registered in the Land Registry (kataster) as the owner.
In such a case, the notary, acting as court commissioner, is not entitled to include the immovable property in the inventory of the estate's assets, even where the notary personally identifies a discrepancy with the entry in the Land Registry (kataster). Nor may the notary (even provisionally) assess the correctness of an entry in a public register. As a result, such disputed property is disregarded when calculating the net value of the estate in the inheritance proceedings (§ 198(1) of the Slovak Code of Civil Non-Contentious Procedure). The legal order, however, allows the heirs to initiate a separate action for a determination that the immovable property belongs to the deceased's estate, or that the deceased was its owner at the time of death.
It is contentious whether this action can be regarded as an action for a determination of an ownership right – a question that has a fundamental impact both on determining the court's territorial jurisdiction and on the amount of the costs of legal representation.
The Constitutional Court of the Slovak Republic addressed this question as early as 2013. It stated that in actions for a determination that property belongs to the estate (or that the deceased was its owner at the time of death), the fee for legal services cannot be based on the value of the property that is to belong to the estate – since this is not a dispute over the determination of an ownership right. A successful outcome of these proceedings does not directly establish the ownership right of the heirs who brought the action. The Constitutional Court characterised such a judgment rather as the resolution of a preliminary question relevant to the further course of the inheritance proceedings – without directly determining what exactly is the subject matter of these contentious proceedings. The Constitutional Court of the Slovak Republic reached a similar conclusion in two further decisions (case nos. II. ÚS 295/2013-12 and IV. ÚS 187/2018).
Given the requirements for wording the claim and the sequence of steps needed to determine the heirs' ownership right, the better view is that this is not an action for a determination of an ownership right, but a special type of action. The ownership right is determined by it only "prejudicially" – that is, provisionally, as at the date of the deceased's death. This action is then followed, after the end of the inheritance proceedings (or supplementary inheritance proceedings) and the issuing of the inheritance order, by a separate action for a determination of the heirs' ownership right.
This action is not a dispute (whether of fact or of law) arising out of the inheritance proceedings, and so it is not a dispute over the right of inheritance under §§ 192 to 194 of the Slovak Code of Civil Non-Contentious Procedure. Disputes arising out of inheritance proceedings concern the circle of heirs, not the extent of the property belonging to the estate. The determination of whether immovable property belongs to the estate does not take place directly in the inheritance proceedings (whose parties may only be the heirs, or those who may reasonably be presumed to be heirs) – it is separate contentious proceedings, generally initiated by an heir against a third party who is not among the potential heirs.
In terms of timing, the heirs are not restricted in any way – they may bring the action before the inheritance proceedings have ended as well as after they have ended. If the judgment upholding the action (that is, determining that the property belongs to the estate, or that the deceased was its owner at the time of death) becomes final only after the inheritance proceedings have ended, that property is subsequently dealt with in so-called supplementary inheritance proceedings.
In practice, it cannot be ruled out that proceedings for the vacation of immovable property combined with a preliminary (prejudicial) determination of the ownership right – for example, on the ground of an alleged absolute invalidity of a deed of gift – will commence before the deceased's death. Since absolute invalidity may be invoked by anyone, the claimant could in theory also be a potential heir, but such a person could not sue directly for a determination of the ownership right, as they would lack standing to sue in such a dispute. In general, therefore, such an action is brought by the deceased personally.
If no final decision is issued in such proceedings before the deceased's death, the court proceeds under § 63(1) and (2) of the Slovak Code of Civil Contentious Procedure and, depending on the nature of the dispute, assesses whether to discontinue the proceedings or continue them. Since this is a property dispute, the proceedings are generally not discontinued and the court continues them with the heirs on the basis of the outcome of the inheritance proceedings. The court may stay the proceedings until the inheritance order becomes final, but in some cases (in particular where there is a single heir or a very narrow circle of heirs) the law allows the contentious proceedings to continue without interruption.
After joining the proceedings, the heirs are in principle obliged to amend the original claim – instead of the deceased's original claim for vacation with a prejudicial determination of the ownership right, they must sue for a determination that the immovable property in question belongs to the deceased's estate, or that the deceased was its owner at the time of death. The heirs cannot seek a direct determination of their own ownership right to the property and thereby bypass the inheritance proceedings – the court would have to dismiss such a claim. The right of inheritance can be confirmed exclusively by the notary in the non-contentious inheritance proceedings.
Do you believe that the estate should also have included immovable property that is missing from it? We will assess your situation and advise you on how to proceed with bringing a declaratory action.
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