Sole will and joint will of spouses: a comparative approach (permissible aspect)

Abstract

The research is aimed at structuring doctrinal developments on the stated topic, comparing them with the related Russian and foreign practices and formulating their own scientific position. The subject of the research is the legal relationship arising in connection with a) the right to make a sole will and b) the determination by the spouses subject to the joint will of the corresponding rights and obligations for a heir. In the course of the study, the dialectical method, general scientific methods of analysis, synthesis, analogy as well as the systemic method were used; special legal methods were used, in particular, the comparative approach. The problem of civil law regulation of the institution of will, and in particular of the joint will of spouses, with the comparative legal method was analysed. As a result, the authors, on the basis of an analysis of the current domestic and foreign civil legislation, have developed ways to solve the identified problems by making appropriate changes to the civil legislation. In particular, the concept of a classic will has been formulated and substantiated. It was established that the mandatory provision concerning the loss of effect of a joint will in the event of a marriage being declared invalid after the death of one of the spouses violates the legitimate interests of a bona fide spouse, and therefore it was proposed to supplement the civil legislation with provisions that would allow the court to keep such a will in force. It has been substantiated that the Russian legislator needs to supplement the legal structure of the institution under research by allowing to draw up a joint will of spouses in extraordinary circumstances. The novelty of the research lies in the proposal to amend the articles of the current civil legislation in order to secure the possibility of making a sole will with electronic or any other technical aids.