The Category of «justice» and Certain Aspects of the Modern Concept of Inheritance Legislation

The relevance of the issue discussed in the article is determined by the need for a fundamental review of existing conflict-of-law instruments regulating inheritance relations under a will with a foreign element and the need to improve conflict-of-law techniques. The purpose of the article is to analyze conflict-of-law rules in the field of inheritance by will with a foreign element, to study the methods and means of conflict-of-law regulation of inheritance by will, and to formulate the author’s proposals for improving the mechanisms of conflict-of-law regulation in the field under study. The article uses general scientific and special legal research methods, in particular: comparative law; dialectical and hermeneutic-legal. The article argues for the need to distinguish between conflict of laws regulation of the right to make a will and the exercise of the right to make a will. It is noted that the Law of Ukraine “On International Private Law” does not define the law of the state that will apply to issues of the right to make a will. Since the right to make a will is an element of civil legal capacity, it is proposed that the legal regulation of the right to make a will be determined by the personal law of the natural person – the testator. However, this restriction will not apply to the right of spouses to make a will. It has been proven that the right of spouses to make a will arises from the moment of marriage registration, therefore the right of spouses to make a will will be determined in accordance with the law of the state where the marriage was concluded, taking into account certain conditions. Unlike the right to make a will, the right to inherit under a will arises on the date of opening of the succession, and the exercise of this right by the heirs is directly linked to the existence of a will made by the testator and its validity. Conflicting issues regarding the testator’s capacity to make, amend, or revoke a will are resolved differently by different countries. The Law of Ukraine “On International Private Law” subjects the issue of a person’s capacity to make and revoke a will, as well as the form of a will and the act of its revocation, to the law of the state in which the testator had his permanent residence at the time of making the will or at the time of death. However, in order to avoid conflict between the testator’s “permanent place of residence” at the time of drawing up the will and at the time of death, it is proposed that the law of the state where the will was drawn up should apply to a person’s capacity to draw up, amend, or revoke such a will, subject to certain exceptions. It has been concluded that the law of the testator’s country of citizenship should be determined at the time of drawing up the will and, if it turns out that the testator has more than one citizenship, he should be given the opportunity to choose the law of any of these countries at the time of making such a choice. Improving the conflict of laws rules governing inheritance by will with a foreign element will help to resolve many problems that exist in judicial and notarial practice.