Ruling:

I. The revision is granted, the judgment of the second instance court in points II. and III. and the supplementary decision of the same court are annulled, and the case in this scope is returned to this court for a new trial.

II. The decision on the revision costs is reserved for the final judgment.

Explanation:

The plaintiff and the first defendant are brothers, the second defendant is their mother. The plaintiff filed a lawsuit, firstly, requesting that 3/10 of the property of his deceased father be excluded from the inheritance, which should have corresponded to his contribution to the increase or preservation of the value of the decedent's property, and secondly, that the donation contract, with which the decedent transferred ownership of one property to the plaintiff, constitutes a paid legal transaction. The revision process relates only to the first part of the claim - exclusion from the decedent's property under Article 32 of the Inheritance Act (hereinafter referred to as ZD).

The court of first instance, after conducting an extensive evidentiary procedure, granted the plaintiff's claim and determined that 3/10 of the real estate and monetary assets, as indicated in point I of the judgment, do not belong to the estate. The court excluded this portion from the deceased's estate and declared it as the plaintiff's property.

The appellate court upheld the defendant's appeal and modified the judgment of the court of first instance by dismissing the plaintiff's claim (including this portion). The main reason is the plaintiff's failure to meet the burden of proof.

Permitted question for revision

The Supreme Court, upon the plaintiff's request, allowed a revision regarding the question: Whether the higher court's position in the challenged judgment, when assessing the justification of the claim under Article 32 of the Inheritance Act, is still in line with the standards arising from the right to judicial protection (Article 23 of the Constitution), or whether the higher court, by excessively rigorous requirements for the burden of proof, wrongly applied the procedural rules under Articles 7 and 212 of the Civil Procedure Act and committed a substantial violation of the provisions of the Civil Procedure Act?

Arguments of the parties in the revision procedure

The plaintiff argues in the revision that the interpretation and decision of the second-instance court are incorrect and violate statutory and constitutional rights. The plaintiff compares the contested decision with the case VS RS II Ips 128/2016 and points out that the approach of the higher court in the present case contradicts the principles established in that case and deviates from the case law, not being in line with the standards arising from the right to judicial protection. The plaintiff insists that he claimed and demonstrated that his contribution to the increase or preservation of the deceased's estate was significant, that the value of the plaintiff's investments at the time of his father's death exceeded consumption, and that the appropriate share is 3/10. The factual basis contained all the necessary elements to identify the claim, and there were no deficiencies that would prevent the defendants from mounting an effective defense. The plaintiff's submissions include a description of the factual basis that distinguishes the legal relationship from others, and the claim is properly substantiated—meeting the requirements for a default judgment if the appropriate procedural situation were present. The plaintiff described his contribution and provided an assessment of the extent to which it influenced the preservation or increase in value of the deceased's estate. It would be unrealistic to expect people to possess precise information about hours of work and the exact value of material investments, and the value of investments can be inferred from more generally formulated descriptions or statements and the expert assessment of what the described investments mean for the value of specific assets.

The defendant, in a timely response to the revision, argues that he consistently pointed out the deficient factual basis. The plaintiff failed to meet the burden of proof. His assistance was not substantial or above average, as the defendant himself provided similar assistance. The defendant refers to the decision II Ips 300/2012 and supports the higher court's position that the plaintiff failed to properly formulate the factual basis, and expert opinions cannot replace it. The defendant requests the rejection of the revision.

The revision is justified.

On the burden of proof (Articles 7 and 212 of the Civil Procedure Act) in connection with the right to judicial protection (Article 23 of the Constitution)

In accordance with the principle of debate, the parties must state all the facts on which they base their claims and propose evidence to prove these facts (Article 7, paragraph 1 of the Civil Procedure Act). The burden of proof and allegation are the most important procedural burdens in civil proceedings and directly influence the success of a party in the proceedings. To succeed in a lawsuit, the plaintiff must state the facts that justify their claim (sufficiency of the claim), and as stipulated in Article 212 of the Civil Procedure Act, they must state the facts and propose evidence on which they base their claim or challenge the allegations and evidence of the opposing party.

The constitutional basis is as follows: for the required level of the burden of proof to be in line with the right to judicial protection (Article 23 of the Constitution), the court must consider the legal and life situations of both parties. From the plaintiff, only what is still possible and reasonably expected can be demanded. At the same time, the burden of proof cannot be reduced to such an extent that the defendant's right to defense is affected (a proper defense can only be mounted against adequately specified factual basis).

The appellant questions whether the higher court set the burden of proof too high and thereby infringed upon (his) right to judicial protection. The Supreme Court frequently encounters similar questions about the rigor of the burden of proof. This is because there is no uniform stance on this issue. The level of strictness depends on the type of legal relationship or the type of facts it concerns; the facts relevant to the case can be more or less concentrated, life-related, and can be asserted either more descriptively and abstractly or with a greater degree of positivist concreteness. The Supreme Court provided criteria to place the present case within the range of other cases in its case II Ips 128/2016 dated September 21, 2017, which the appellant refers to.

The theory of individualization dictates the minimum factual substrate, which requires such a description of the factual basis of the claim that the legal relationship in question can be distinguished from others. If this minimum is not reached, then the lawsuit is not only insufficient but also incomplete. The theory of substantiation requires the plaintiff to substantiate the claim, i.e., to state the facts on which the application of the law is based. This theory primarily relies on the defendant's interest in knowing the basis for building their defense, so the level of indeterminacy of the factual basis must not be so loose as to hinder the defendant's effective defense. The decisive test for the adequacy of the factual basis is whether the court, based on the offered factual basis, would issue a default judgment under Article 318 of the Civil Procedure Act if the procedural requirements were met. If it would, then the factual basis was insufficient. However, the Supreme Court warned that, given the presented procedural (alleged) material, only two answers are possible: either that the claim is insufficient, and therefore its evidentiary hearing is omitted and the claim is immediately rejected, or that it is sufficient, and thus (assuming evidentiary success) the claim is fully justified. Intermediate positions are also possible.

Intermediate positions between the two extremes are possible, especially when it comes to the question of quantitative facts and, consequently, the question of the justification of the claim in terms of the amount. These intermediate positions, which result in a partial grant and partial dismissal of the claim, are not necessarily a consequence of partial evidentiary success but can also be a result of a loosely formulated factual basis regarding the amount of the claim. Put simply, when it comes to the issue of the sufficiency of the claim concerning the amount, one must ask whether the factual allegations of the claim might allow the court to award the plaintiff at least some of what is being requested.

The court must assess the sufficiency and adequacy of the factual basis based on the tests mentioned, with the specific assessment depending on the legal basis of the claim. What is the legal basis in our case?

Regarding the claim for the exclusion of the deceased's property in favor of the descendants

Article 32 of the Inheritance Act grants the deceased's descendants who lived together with the deceased and assisted him in acquiring wealth through their work, earnings, or in any other way the right to request the exclusion of a portion from the deceased's estate that corresponds to their contribution to the increase or preservation of the value of the deceased's estate. This portion does not belong to the estate, is not taken into account in calculating the compulsory portion, and is not included in the statutory share of the heirs.

To substantiate the descendant's claim for exclusion, (1) there must be a community between the descendant and the deceased, in which (2) they jointly acquire property, (3) the descendant's contribution must be significant or higher than what is expected in a usual parent-child relationship, and (4) it must relate to the entire property that the ancestor and descendant managed, maintained, and increased together. These are legally decisive facts that the descendant must allege and subsequently prove if they want to succeed with a claim under Article 32 of the Inheritance Act.

Assessment of the specific case

The plaintiff claimed in the lawsuit that he started performing daily tasks and work in the tavern and on the properties owned by the deceased in 1989. He began cultivating and preparing fields with a small tractor called "Tomo Vinkovič" and growing potatoes. He plowed, harrowed, dug, and performed other agricultural work, including snow removal. In 1992, he started preparing firewood for the tavern and the apartment above it, where they all lived. This saved them from purchasing heating oil. He continued doing all these tasks until the deceased's death, which took up a significant amount of his time. In 1996, he started working regularly in the tavern from 10:00 am to 4:00 pm on weekdays, and also worked in the evenings on Saturdays and all day on Sundays. He performed all other tasks without additional payment. After completing his education, he practically worked full days in the tavern, including weekdays, weekends, holidays, and often at night. Working in the tavern required preparations before and after opening hours. In 1997, he physically helped with the construction of an extension to the tavern by assisting in masonry and other construction work. In 1998, he took care of the procurement and delivery for the tavern, managing it efficiently to save significant amounts of money. All the savings were then invested in real estate, obtaining permits, and preparing the land where the new house stands today. In 1999, construction of the new house began, financed exclusively from the profits of the tavern (construction lasted approximately five to six years). No major investments were made in the tavern after that. Simultaneously, the plaintiff built a loft apartment above the garage at the tavern using his own resources and assistance from neighbors. In 2006, the construction of a terrace for the tavern started. The idea and execution of the work were carried out by the plaintiff. He paid for the following work or purchases: paving stones (Oblak Logatec), chairs and tables (Baumax Ljubljana), larch fence and sunshades (Union), concrete (Jože Mule), stainless steel fence (Danpol), with professional assistance and advice provided by B. from Celje. At the same time, he replaced the old wooden windows in the tavern with new ones purchased from Kovinoplastika Nova vas. In 2010, he installed a sewage connection to the treatment plant, and after his father's death, he replaced the drains in the tavern and the apartment. The first defendant did not participate in any of these tasks. Only the plaintiff and his parents worked in the tavern. Despite having an eight-hour workday according to the employment contract, the plaintiff actually worked up to 16 hours a day, including Saturdays, Sundays, and holidays (responsible for organizing, as well as the hygiene system of operations, monitoring, procurement, etc.).

The plaintiff summarized his claims by stating that his work between 1989 and 2012 significantly contributed to the increase and preservation of the value of the deceased's estate since he invested many hours of work and his own earnings. The value of the real estate alone, which is part of the estate, exceeds EUR 150,000. Even if only the unpaid working hours in the tavern and work on the properties owned by the deceased were added up and evaluated according to the prices for such work, it would be found that the plaintiff is entitled to more than 3/10 of the deceased's estate, as claimed in the lawsuit.

In case II Ips 128/2016 dated September 21, 2017, the Supreme Court emphasized that the requirement for a party to state legally decisive facts with an appropriate level of concrete detail is applicable only when it involves independent, singular actions or acts, such as a loan of a specific amount, marriage, or real estate purchase. It is different when it involves several years of life, which can be summarized in general or descriptive statements or fragmented into numerous details. This may depend on the individual's style of presentation and how carefully they keep information about specific life events (in memory or private documentation). However, these circumstances should not affect an individual's right to access the court. The plaintiff's factual basis describes a life from which the increased value of the deceased's estate allegedly resulted, along with the plaintiff's self-assessment of the extent to which this value increased due to his contribution. This is sufficient.

Considering that it involved many years of coexistence (from 1989 to 2012), it would be unrealistic to expect the plaintiff to provide a detailed account of the number of hours spent on specific tasks (agricultural or otherwise). It is enough that he described the nature of the individual tasks, provided a timeframe, and mentioned the investments that demonstrated his contribution to the increase or preservation of the value of the deceased's estate. He also provided an estimate of the value of his contribution. This allowed for the identification of the claim and enabled the defendant to mount an effective defense. This is confirmed by the judgment of the court of first instance, which indicates that the defendant was effective in challenging some of the plaintiff's alleged facts in his defense.

The request of the higher court, which unquestioningly followed the defendant's arguments for additional substantiation of the factual basis (absurdly exemplified by the request for further analysis of the snow-shoveling claims), is unreasonable and contradicts the effective right to judicial protection (Article 23 of the Constitution) in relation to the plaintiff.

The Supreme Court agrees with the respondent (and indirectly with the court of first instance) that the position it took regarding the determination of the amount of the claim in case II Ips 128/2016 dated September 21, 2017, can also be extended to cases involving claims based on Article 32 of the Inheritance Act. In these situations as well, the justification of the claim in terms of the amount can be appropriately determined with the help of an expert, even though the method of determining the value of the descendant's contribution partly qualifies as informative evidence. It would be unrealistic to expect individuals in such family law life situations to continuously record and keep data for potential legal proceedings. The value of the descendant's contribution can be inferred from broader descriptions or statements (which the plaintiff provided) and assessed by experts (who, as stated in their opinions, had no difficulty fulfilling their expert tasks). The requirement for the plaintiff to break down his self-assessment with approximate estimates of the value of his working hour and other (solely for mathematical calculation necessary) data is inconsistent with the fact that the Supreme Court has found such data to be unnecessary for the plaintiff. Therefore, it is sufficient that the plaintiff formulated his claims descriptively and provided a final estimate, which also limits the amount of the claim (Article 2 of the Code of Civil Procedure). There doesn't seem to be a conceptual reason why the gap between the claims allowing the determination of the value of his contribution and the actual determination of that contribution cannot be filled by an expert in the specific case. This does not undermine the adversarial nature of the proceedings but, on the contrary, contributes to the effective exercise of the right to judicial protection, which would be hollowed out by unrealistic requirements that individuals continuously act as actuaries of their own lives. The appellate court undermined the plaintiff's right to judicial protection with its position.

Decision on Revision and Directions for Further Proceedings

The appellate court therefore incorrectly applied Articles 7 and 212 of the Code of Civil Procedure (ZPP) as it excessively encroached upon the plaintiff's right to judicial protection (Article 23 of the Constitution). The identified violation necessitated the annulment of the challenged judgment insofar as it ruled on the defendant's appeal and the entire costs of the proceedings, as well as the remittal of the case in this scope to the second-instance court for a new trial (Article 379(1) of the ZPP).

Decision on Revision Costs and Voting Outcome in the Panel

Pursuant to the third paragraph of Article 165 of the ZPP, the appellate court reserved the decision on costs for the final decision.

The Supreme Court deliberated in the panel as stated in the introduction of the decision. The decision was adopted unanimously (seventh paragraph of Article 324 of the ZPP).

 

1 It examined over 150 documents, heard the plaintiff, the first defendant, and seven witnesses, and appointed three experts who prepared expert opinions and one or more supplements. See the evidentiary decision in point 8 of the reasoning of the first-instance judgment.
2 Case No. II DoR 515/2021, dated February 9, 2022.
3 Judgment of the Supreme Court of the Republic of Slovenia, Case No. II Ips 10/2012, dated October 16, 2014, point 7 of the reasoning.
4 Decision of the Supreme Court of the Republic of Slovenia, Case No. II Ips 128/2016, dated September 21, 2017, point 12 of the reasoning.
5 Recently, in the case of compensation claims by persons who were deregistered from the permanent residence register (judgment and decision of the Supreme Court, Case No. II Ips 80/2021, dated September 15, 2021).
6 Decision of the Supreme Court of the Republic of Slovenia, Case No. II Ips 128/2016, dated September 21, 2017, point 16 of the reasoning.
7 See Dolenc, M., On the Role of Informative Evidence in Civil Proceedings, Podjetje in delo, No. 6-7/2011, p. 1467 et seq.
8 See Zobec, J., Substantive Requirements for Issuing a Default Judgment and Inquisitorial Proceedings, Pravnik 11-12(2006), p. 907.
9 See Dolenc, M., cited work above.
10 Decision of the Supreme Court of the Republic of Slovenia, Case No. II Ips 128/2016, dated September 21, 2017, points 18 and 20 of the reasoning.
11 Decision of the Supreme Court of the Republic of Slovenia, Case No. II Ips 128/2016, dated September 21, 2017, point 13 of the reasoning.
12 According to judicial practice, the requirement of "living together with the decedent" under Article 32 of the Inheritance Act is not considered as a necessity of cohabitation (living under the same roof), let alone in a shared household, but rather as shared actions, joint acquisition that is expressed in the increase or preservation of the value of generally the entire ancestor's property. Judicial practice has recognized such gainful family coexistence in shared work in a hair salon and joint investments in a house, even if the plaintiff lived in a different place (judgment of the Supreme Court of the Republic of Slovenia, Case No. II Ips 44/1995), as well as the life of a descendant with their family in the same house together with the decedent, but not within the framework of a shared household, while the descendant helped the decedent with domestic chores (washing, scrubbing, feeding, manure disposal, mowing, etc.) and increased the value of the property by building a wooden annex, excavation work, and erecting a wooden partition wall (judgment of the Supreme Court of the Republic of Slovenia, Case No. II Ips 169/1995). However, the court did not attribute individual investments in the sense of building on the ancestor's land, renovations, or extensions to the existing structure (Case No. II Ips 156/2013), the plaintiff's customary work on the father's property (Case No. II Ips 415/1992), or investments aimed at maintenance and adaptation to the personal needs or desires of specific users of the house or apartment (Case No. II Ips 1/2008) to the claim under Article 32 of the Inheritance Act. Such judgment is evident in the judgment of the Supreme Court of the Republic of Slovenia, Case No. II Ips 51/2018, dated May 17, 2018.
13 Only if the value of the investments exceeds the consumption can it be determined that the value of the property is higher and by how much. Supreme Court of the Republic of Slovenia, Case No. II Ips 300/2012, dated April 9, 2014.
14 At the main hearing, he stated an hourly rate of EUR 5 for additional work performed in the restaurant.
15 See the summary of the plaintiff's claims in point 2 of the first-instance judgment, pp. 5 and 6.
16 The first-instance court, taking into account the defendant's detailed defense submissions (see pages 7-9 of the judgment), found: 1. Regarding the preparation of firewood for the restaurant and the apartment: it was undisputed that the plaintiff partially cut wood in his own forests and partially in forests owned by A. A.; it believed him that he did not appropriate the benefits from the felled wood; it then followed the assessment of the forestry expert as to how much wood was annually cut in his own forests from 1992 to 2012; the expert, based on the plaintiff's statements that EUR 6,000 was spent on heating the restaurant, calculated that the plaintiff spent an average of 86 hours per year preparing the determined amount of firewood (deducting half of the hours because A. A. helped him); the expert estimated the hourly rate at EUR 17.5 (based on the wage rate recognized for state forest administrators); a total of EUR 15,050. 2. Regarding agricultural work and snow removal: the court followed the economic expert who assumed that the plaintiff spent 4 hours per day (neither party objected to the method of calculating the value of agricultural work or the calculation of the time of the plaintiff's work) and awarded EUR 79,805.67. 3. Regarding work in the restaurant: the court assessed the plaintiff's work differently from the economic expert and recognized a contribution based on its own findings (EUR 27,151.85 for the entire claimed period from 1996 to 2012). 4. It concluded that the plaintiff did not prove his contribution to the construction of an annex since it was ordinary assistance among family members. However, the plaintiff did prove his investment in the construction of the attic apartment, which the construction expert assessed at EUR 11,889.23. 5. Regarding the construction of the terrace in front of the restaurant, the plaintiff did not prove that he financed the purchase of materials and carried out the construction himself, so the court could not assess the contribution in terms of investments; however, it followed the calculation of the economic expert for payment in the amount of 100 hours, i.e., EUR 438.83. 6. The court did not consider the plaintiff's contributions regarding the sewage connection to the treatment plant as an increase in the decedent's property. 7. It concluded that the condition of joint actions and acquisition by the plaintiff and his deceased father was met. It added that the defendant did not provide factual and evidentiary grounds for how the plaintiff's use of the decedent's property affected its value. 8. It ruled that the value of the entire decedent's property was EUR 425,953.69, and the plaintiff's contribution was EUR 134,335.58, which exceeds 3/10.
17 The appellate court, in point 16 of its reasoning, agreed with the defendant that the plaintiff failed to meet his evidentiary burden with generalized and terse allegations, which he himself had pointed out in his response to the lawsuit. The plaintiff stated the performed work, but apart from mentioning the year in which or from which he performed each specific task, he did not provide detailed information and description of the scope and time of the performed work, how he assesses their value, or the extent of his contribution to the preservation/enhancement of the decedent's property with each task (for example, the plaintiff did not explain how much time he typically spent on snow removal from the parking lot in front of the restaurant, the size of the parking lot, or the average amount of snowfall).
18 The first-instance judgment indicates: the forestry expert pointed out that the case documentation does not contain precise information about the annual consumption of heating oil and firewood, but based on the plaintiff's statements that EUR 6,000 was spent on heating the restaurant, he calculated that the plaintiff spent an average of 86 hours per year preparing the determined amount of firewood (point 21 of the reasoning). / Neither party objected to the method of calculating the value of agricultural work or the calculation of the plaintiff's work time (point 28 of the reasoning). / The court assessed the plaintiff's work in the restaurant differently from the expert economist and recognized a contribution based on its own findings (point 31 of the reasoning). / The plaintiff objected to the expert's calculation for the attic (point 42 of the reasoning), and he did not provide evidence of his contribution to other construction works.
19 See the decision of the Supreme Court of the Republic of Slovenia, Case No. II Ips 128/2016, dated September 21, 2017, point 23 of the reasoning.
20 The appellate court, when deciding on the parties' appeals regarding the determination of the defendant's costs, overlooked the court fee for the defendant's appeal. Therefore, it correctly issued a supplementary decision (rather than a corrective decision, as the defendant proposed), but it nomotechnically improperly inserted a new item into the judicial dispositive instead of appropriately incorporating the missing amount of costs into the existing cost decision (e.g., by stating, "The judgment of the appellate court... is supplemented in point III of the dispositive by ordering the plaintiff to pay an additional... EUR for the costs of the appellate proceedings").

Reference:

RS - Constitution, Laws, Agreements, Contracts
Constitution of the Republic of Slovenia (1991) - CRS - Article 23
Inheritance Act (1976) - IA - Article 32
Civil Procedure Act (1999) - CPA - Articles 2, 7, 212

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