Partition involving a person who is not an heir

What is the legal effect of a partition between persons one of whom is not an heir?

Inheritance cases are often legally complex, and the Supreme Court of Cassation is frequently called upon to address disputes that arise in practice. In Interpretative Decision No. 119 of 3 December 1962, for example, the Bulgarian Supreme Court considered a case in which a person who turned out not to be an heir took part in proceedings for the partition of property in the deceased’s estate. What is the legal effect of that partition? Is it valid as between the heirs but voidable as regards the third party? Is it voidable as regards all participants, or can it be set aside in its entirety as regards everyone who took part in the proceedings?

The court held that where a participant is neither an heir nor entitled on any other ground to be a party to the proceedings, the resulting judgment is defective. It is contrary to law, and the defect must be remedied by an application to set the judgment aside, made by a party with a legal interest in doing so. This is not a question of the judgment being wholly null or voidable in the sense in which those concepts apply to transactions. The judgment may have been delivered in breach of a rule identified in the Code of Civil Procedure, but once it has become final the only route to having it set aside is the extraordinary remedy described above. Whether the judgment should be set aside only in relation to the participant who lacked standing or in its entirety is a question for the court that gave the original judgment to determine in each case. Voluntary partition is different: the challenge would be to an agreement rather than to a judgment.

If you find yourself in this situation, consult a lawyer experienced in both procedure and substantive law so that your rights and legitimate interests can be adequately and effectively protected.