The regulation of rectification of the partition of an estate in the Inheritance Code is relatively new in many respects in our old-fashioned succession laws. Rectification of the partition of an estate has been possible since 1 January 2016, and a new Chapter 23a concerning the rectification of the partition of an estate has been included in the Inheritance Code. With the new regulation, the legal situation has become clearer, and thus an incorrectly carried out partition of an estate does not necessarily become final. In this article, I will examine situations where an already completed partition of an estate can be rectified and the procedure for rectifying the partition of an estate.
When can a distribution of inheritance be corrected?
The regulation concerning the rectification of estate division applies in situations where a heir's or a universal legatee's right to an inheritance has been overlooked in a previously conducted estate division, or where the relationship between a child and a parent is confirmed only after the estate division, resulting in a new heir to the estate.
In practice, one of the most common situations leading to a rectification of an estate division is the discovery of a will made by the deceased only after the estate division has been carried out. The legal heirs of the deceased can generally be identified reliably during the carefully conducted estate inventory. As Finland does not have a separate will registry and the practices for storing wills vary greatly – some deposit a will in a bank safe deposit box, others among other papers at home – the discovery of a will after the estate division has already been completed is not an entirely uncommon situation.
A beneficiary or legatee who has been passed over in the distribution of an estate has ten years from the date of the deceased's death to bring their right as specified in the will into effect. If more than ten years have passed since the deceased's death, and the distribution of the estate has already been carried out, rectification of the estate distribution is no longer possible.
Procedure for correcting estate distribution
For the rectification of a division of inheritance, a new division of inheritance must be carried out. The primary principle of regulation is that property received as inheritance or by will for rectification must be returned to the estate for the rectification of the division of inheritance (so-called actual return liability). Alternatively, if the party requiring rectification has acquired the status of an heir only after the division of inheritance has been carried out, the party liable for return may pay the estate a sum of money corresponding to the value of the property they have over-received (so-called value-based return liability). The law provides for situations where the property to be returned is no longer intact or otherwise returnable, or where the value of the property to be returned has decreased significantly. The starting point is that the value of lost property must be compensated, whereas for damaged property, the decrease in value must be compensated.
It is very possible that an adjustment to the distribution of an estate may become relevant, for example, only a long time after the original distribution of the estate, in which case the statutory duty of restitution may become unreasonable and the duty of restitution can be moderated. When considering moderation, regard must be had to whether the person liable to make restitution knew, or ought to have known, of the right of the person requiring the adjustment to receive assets from the estate, the time taken to present the claim for restitution, the financial circumstances of the person liable to make restitution and the person requiring the adjustment, and the impact of the duty of restitution on their livelihood, as well as other comparable factors. The situations covered by moderation can thus be diverse and require broad overall consideration of the circumstances.
Just as with the usual division of an estate, it is possible and often advisable for heirs and legatees to reach an agreement regarding the return of assets and rectification of the estate division. The procedural rules of a usual estate division apply to the rectification of an estate division. If, for one reason or another, an agreement cannot be reached concerning the return of assets and the content of the rectification of the estate division, it is possible to apply to the deceased's estate for an estate administrator and divider.
Finally
Situations concerning the correction of estate distribution can be very complicated and evoke a range of emotions. From the perspective of the person obliged to return assets, having to return property received in the estate distribution may feel unreasonable, whereas the heir who was overlooked in the estate distribution has an interest in enforcing their rights. If a correction of the estate distribution becomes relevant, it is recommended to contact a solicitor as early as possible to clarify the course of the process and to establish the rights and obligations related to the correction of the estate distribution.
Article written by a lawyer Santeri Valkamo. .You can always call him free of charge on 010 299 5090. You can check our price list Here.
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Criticising the distribution of an inheritance
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Inheritance Register