INTERPRETATION OF THE CONCEPT OF FAMILY MEMBERS AND CLOSE RELATIVES OF THE TESTAMENTARY HEIR IN THE CONTEXT OF THE NORM OF PARAGRAPH 3, PART 4, ARTICLE 1253 OF THE CIVIL CODE OF UKRAINE (BASED ON THE MATERIALS OF COURT PROCEEDINGS)

The relevance of the article is due to the lack of a clear legislative definition of the circle of family members and close relatives of heirs who are prohibited from being witnesses when certifying a will, which leads to inconsistent application of this rule in judicial practice. This scientific article is devoted to the insufficiently researched issue of understanding the concept of family members and close relatives of an heir under a will in the context of paragraph 3 of part 4 of Article 1253 of the Civil Code of Ukraine. The purpose of the article is to interpret this concept, study judicial practice on this issue, identify its trends, the impact of violations of this provision of the Civil Code of Ukraine, and the validity of the will. During the research, the author used general scientific and special scientific research methods – dialectical, systemic-structural, comparative-legal. Their use made it possible to determine the place and purpose of the norm of paragraph 3 of part 4 of Article 1253 of the Civil Code of Ukraine, as well as the features and trends in judicial practice regarding its application. In the absence of clear legislative regulation of the issue in question, judicial practice should become the basis for its interpretation and understanding. The article discusses various approaches that have developed in the courts of Ukraine regarding the understanding of the concept of family members and close relatives of the heir under a will. As an example, the materials of a court case were analysed, where one of the two witnesses to the certification of the will was the uncle of the testamentary heir. The article emphasises that since there is no clear list of family members and close relatives, the interpretation must be substantive, taking into account the specific legal situation. At the same time, attention is drawn to the priority application by many courts of the Law of Ukraine ‘On Prevention of Corruption’, which regulates a wide range of so-called ‘close persons’ in relation to a person authorised to perform the functions of the state or local self-government and who holds the relevant position. This position is criticised in the article, since the aforementioned Law has a specific purpose of legal regulation, applies to public legal relations and cannot, by its nature, regulate private inheritance relations. In addition, the concepts of close persons and close relatives are not identical. In the context of considering this issue, the importance of the Decision of the Constitutional Court of Ukraine No. 5-rp/99 of 3 June 1999 (case on the official interpretation of the term ‘family member’) was emphasised, which states that there are no uniform criteria or an exhaustive list of family members, and that the interpretation of this concept should be based on the objective difference in its meaning depending on the branch of law. The article emphasises that the interpretation of family and civil law leads to the conclusion that uncle is a close relative of his nephew as an heir under a will. At the same time, it is argued that the decisions of the courts of appeal and cassation, which in the case under consideration decided to recognize the uncle as a close relative and declared the will null and void, are ambiguous and controversial. In particular, attention was drawn to the groundlessness of applying the provisions of the Law of Ukraine ‘On Prevention of Corruption’ as a legal basis for determining the circle of close relatives; to the inconsistency of judicial practice; to the artificial broad interpretation by the courts of the requirements for the form and procedure for certifying a will, without taking into account the actual will of the testator.