Mortis Causa Research Articles

Donatio mortis causa: new signs of life? Rahman v Hassan [2024] EWHC 1290 (Ch)

Abstract In Rahman v Hassan [2024] EWHC 1290 (Ch), HHJ Paul Matthews held that registered land and online bank and shareholding accounts can form the subject-matter of donatio mortis causa, and that, respectively, handing over the land certificate or certain lease documents, and sharing the login/password, can suffice for ‘parting with dominion’ over them. It is suggested that difficulty regarding these assets stems from ambiguity as to whether the function of the ‘sufficient step to implement’/‘parting with dominion’ element(s) of the doctrine is to evidence donative intention or to perform a ‘transitive’ function (and, if the latter, what that function is).

Donationes Mortis Causa of Real Property: Missed Opportunities and Foreclosed Possibilities

Donationes Mortis Causa of Real Property: Missed Opportunities and Foreclosed Possibilities

사인증여(死因贈與)의 철회 - 대상판결: 대법원 2022. 7. 28. 선고 2017다245330 판결 -

Although Korean Civil Code's article 562 notes that "The provisions on legacy shall apply mutatis mutandis to a gift that becomes effective due to the death of a donor." under the title of mortis causa, there are no specific regulations on which codes get mutatis mutandis applied. Thus this part entirely depends on interpretation, and there has been a theoretical dispute over whether article 1108 regarding arbitrary withdrawal of a will without the consent of the legatee can be applied mutatis mutandis to mortis causa. The dominant opinion is that mortis causa is a contract and must not be allowed to applied mutatis mutandis with the regulations on withdrawal of legacy. On the other hand, judicial precedents have not taken a clear position on this; however, contrary to the dominant view, the civil code's article 1108 on the withdrawal of will approved the mutatis mutandis application theoretically for the first time in the target judgment. Considering the intent of mortis causa and legacy, it is hard to acknowledge the difference between the two in that the donor's final intention regarding the attribution of one's property must be respected. Nevertheless, dominant view in Korea has been that the regulations on mortis causa should not be applied mutatis mutandis with article 1108 according to the legislator's decision in the section of the contract of legacy. However, considering the purpose of the enactment, the reason why regulations on mortis causa were placed in the section of the contract was that even if it was concluded in the form of a gift contract, it corresponds to a legacy and should be put as a care provision in order to show difference from legacy. If so, the remaining argument is the precedence in the comparative sentence between the beneficiary's right to expect and the donor's respect for the donor's final intention, which is judged to be more respectful of the donor's final intention, considering that the legacy and the mortis causa have the same purpose. Considering these points, it was very reasonable to haved judged that the target judgment applied mutatis mutandis with article 1108 on the withdrawal of the legacy is allowed to withdraw mortis causa unless there were special circumstances.

Donatio mortis causa: the gift that keeps on giving

Abstract Applying the doctrine of donatio mortis causa is relevant yet risky. This article takes a deep dive into the risks associated with deathbed gifts and the reasons for their continued relevance in English and Welsh law.

Spadek po Emilii: studium przypadku z zakresu międzynarodowego prawa spadkowego i przepływu dokumentów w Unii Europejskiej

The presented case study builds upon a fictious factual scenario involving transnational succession. It tells a story of Emilia — a national of a Member State who emigrates to another Member State, establishes a successful business and marries a national of that other State — also a women. She dies during COVID-19 pandemic and leaves an estate comprising immovables and other assets located in a number of states. The case study touches upon various legal questions arising under Regulation 650/2012, Regulation 2016/1191, and the Hague Apostille Convention. It invites the trainers and students to consider concepts such as the place of habitual residence of the deceased, the European Succession Certificate and the national instruments certifying the inheritance, as well as the will and the donatio mortis causa. It asks questions relating to the formalities that are necessarily to complete a transnational succession. Notably, it lays out a problem whether a succession in a same-sex marriage — concluded validly in one Member State — should be accepted in another Member State that does not know such a concept in its domestic law.

1)Definition of Free Gifts in Calculating Legal Reserve of Inheritance and Its Application to Trusts

The tools with which the deceased transfer their property to their heirs have varied. How to define free gifts in calculating legal reserve of inheritance in these various property successions is an important issue. In this Essay, I direct attention to the concept of ‘free gifts’ stipulated in Article 1113 of the Civil Act. I noticed the ways of calculating the amount of legal reserve of inheritance in which multiple parties participates especially in trusts. A trust is a legal relationship involving multiple parties so it has a similar aspect to a contract in favour of third person. But the beneficiary of the trust who is often called equitable owner in common law system has a stronger position than that of a simple creditor. Therefore it should be deemed that the value of the beneficial interest has been donated directly by the truster to the beneficiary when a property is transferred using a trust. Inter-vivos trust as will substitute is often substantively a gift mortis causa granting beneficial interest in trust to a beneficiary. As such, it is reasonable to include the value of the beneficial interest in the base property in calculating reserved share. And it should be allowed for the holder of revised share to claim for the return of it against the beneficiary by way of claiming the transfer of beneficial interest. In the case of trusts established by will, the beneficiary’s interest is calculated as a gift from the truster to the beneficiary. Therefore the value of the beneficial interest should be treated the same as the gift for the special beneficiary in calculating legal reserve of inheritance.

Disposing of property upon death: Contemplating the act of testation performed with animus testandi versus a contractual disposition in terms of a valid pactum successorium

While the fate of assets upon death is generally decided under the law of succession, it does not have to be. In addition to a valid will (testate succession), succession could also be governed by contract, in terms of a valid pactum successorium (currently either a donatio mortis causa or an antenuptial contract containing succession clauses). (Intestate succession, although a third option, is put aside for present purposes.) Both testate and contractual succession require an expression of intention in the form of a legally recognised act. The dispositive act in these two instances shares certain features. In both, the act involves a disposition of property intended to apply upon death and is obligationary. The vesting of rights in both can also only occur upon death, while assets are transferred by the appointed executor who administers the estate. Yet the essence of the dispositive act renders these two forms of succession fundamentally different. Contractual succession, with an agreement as the dispositive act, operates under the law of contract. Since the disposition is contractual, it needs to comply with the requirements for a valid contract, with animus contrahendi as the defining form of intention. Testate succession is governed by the law of succession, with animus testandi being the required intention. Animus testandi turns the dispositive act into an act of testation, which, in turn, renders the document in which it is embodied a will. Although this distinction seems straightforward enough, South African law is yet to reflect it. This shortcoming results in legal uncertainty, which creates new challenges in light of the court’s power of condonation. This article focuses on the different dispositive acts to shed light on the intention associated with each and, specifically, to clearly distinguish between animus contrahendi and animus donandi in a contractual disposition, and animus testandi. Ultimately, a clear distinction between the intentions will enable a better understanding of the applicable act of disposition. Admittedly, the intention will probably remain central in the event of uncertainty, and the surrounding circumstances will still be decisive in determining it. However, it is suggested that an added focus on the act – assessing it in terms of its essence and associated form of intention – will make for a considerably easier investigation than a sole focus on intention.

Legal Framework of Agricultural Land/Holding Succession and Acquisition in Slovenia

Agricultural land legislation in Slovenia contains extensive special provisions that directly regulate the legal transfer of agricultural land and holdings inter vivos and mortis causa, including inheritance. Additionally, some measures within the common agricultural policy (such as financial support for the takeover of farms by young farmers) and tax policies (exemptions) provide incentives or alleviations for certain legal transactions involving the transfer of agricultural land and holdings. Among special provisions on the transfer of agricultural land and holdings, those relating to a statutory preemption right and a statutory priority right to lease agricultural land have the longest continuity (from the late 1950s). The holders of these priority rights must meet certain requirements and range in several priority classes. At first, agricultural organisations as legal persons had better priority rights than farmers. In 1990, the priority order was reversed by placing individual farmers before legal persons, individual agricultural entrepreneurs, and the National Agricultural Land and Forest Fund (NALFF). In 1973, the agricultural land legislation prohibited the division of certain middle-sized family farms (protected farms) through inheritance (mortis causa) and later (1986), also inter vivos, (with certain exceptions). The Agricultural Land Act and the Forests Act also restrict the division of certain agricultural or forest land plots. The draft acts of 2019 and 2020 prepared by the Ministry of Agriculture foresee important changes of the agricultural land policy, including the priority order between the statutory preemption rights and the removal of a general restriction on the division of protected farms inter vivos.

A new lease of life for Donatio Mortis Causa?

Coronavirus has thrown the world into disarray. New developments and contingency measures are being adopted on a daily basis. New legislation has been adopted to regulate people’s lives. As every law student learns, equity developed to address the inadequacies of the common law and achieve justice when to deny it would be unconscionable. Ideally, all those confronting the possibility of death from this virus would have had the time and resources to draw up a will. The reality is that many will not have had either. This article considers the equitable institution of Donatio Mortis Causa and its relevance in the current crisis.

Particular Rules on the Transfer of the Holding Farm in Spanish Law

This article aims to provide a brief summary of Spanish law on the transfer of holding farms. After a general introduction, the author analyses the rules on leases and transfers. Subsequently, land access issues are discussed, particularly for young farmers and women. The author also addresses taxation on the transfer of agricultural land and mentions specific contract law provisions. The rules on mortis causa and inter-vivos access are discussed separately.

Die Bedeutung des antiken jüdischen Rechts für das römische Recht und die antike Rechtsgeschichte am Beispiel der rabbinischen Rezeption und Modifikation der griechisch-hellenistischen diathēkē als dîjathîqî und der donatio mortis causa

Abstract Reuven Yaron (1924–2014) in memoriam The importance of Ancient Jewish Law for Roman Law and Ancient Legal History – the example of the Rabbinic reception and modification of the Greco-Hellenistic diathēkē as dîjathîqî and the donatio mortis causa. This paper aims to show that ancient Jewish law is of greatest importance for interpreting Roman law and understanding ancient legal history. After exemplifying the close relation of the Pentateuch and the cuneiform law, we focus on the reception and modification of the Greco-Hellenistic diathēkē (testament), which came into Jewish law during tannaitic times as dîjathîqî and was reinterpreted by the rabbis as donation. Finally, we compare the rabbinic dîjathîqî and the Roman donatio mortis causa.

The donation mortis causa

민법은 제562조에서 사인증여에 대해 유증의 규정을 준용한다고 규정하고 있다. 그런데 이 규정은 한편으로 사인증여가 무엇인지, 다른 한편으로 준용되는 규정이 무엇인지에 침묵하고 있어 그 내용이 명확하지 않다. 본고는 유증의 효과에 관한 규정만이 준용된다는 종래 통설과 판례에 의문을 제기하고, 이 규정의 연원을 역사적이고 비교법적으로 추적함으로써 그 의미와 목적을 해명하고자 한다. 본고의 결론을 요약하면 다음과 같다. 1. 로마법에서 기원한 사인증여는 중세에 상속계약이 등장한 이후 유언과 상속계약 사이의 관계에서 점차 의미를 상실하였다. 현재 각국의 민법은 독자적인 제도로서 사인증여를 인정하지는 않으며, 이를 부정하거나 아니면 사인처분으로서만 효력을 가지게 한다. 2. 이러한 역사적⋅비교법적 인식에 비추어 민법 제562조도 마찬가지라고 해석해야 하며, 이는 유증의 효과에 관한 규정뿐만 아니라 요건에 관한 규정도 준용됨을 의미한다. 그렇지 않으면 무방식의 철회불가능한 상속계약이 입법자의 결단 없이 창출되는 결과가 되어, 유언의 방식과 철회가능성이 잠탈된다. 그러한 잠탈의 위험은 무효인 유언의 사인증여로의 전환을 인정함으로써 더욱 가중된다. 3. 증여자 사망 시점에 수증자가 생존할 것을 정지조건으로 하는 증여는 민법제562조의 적용을 받는 사인증여이다. 단순히 증여자 사망을 이행기나 시기로 한증여 또는 수증자 선사망을 해제조건으로 하는 증여는 생전증여이나, 이때에도 증여자에게 실질적 철회가능성이 부여되어 있다면 사인증여로 보아야 한다. 한편 사인증여이더라도 증여자가 사망 전에 이를 실행한 때에는, 그 시점부터 생전증여로 취급되어야 한다.The Korean Civil Code’s article 562 provides that the rules on legacy should be mutatis mutandis applied to the donation mortis causa. This article s meaning is not obvious, because it neither defines its concept nor specifies the applicable rules. The dominant opinion as well as the case law hereby insist on consulting only the rules on the legacy’s effects. The author, however, questions this view. He traces the development of the donation mortis causa from a historical and comparative viewpoint and submits his own suggestions as follow. 1. The donation mortis causa which has its origin in Roman law lost its practical relevance after the inheritance contract had emerged. As a result, the modern Civil Codes either denies its existence (France and Italy) or make it effective only in the form of legacy or inheritance contract (Austria, Germany, Switzerland and Spain). 2. The same must be true of the Korean law. Therefore, all rules on legacy, including its testamentary forms and possible withdrawal, should be applied to the donation mortis causa. Otherwise the Civil Code’s rules on last will would be dangerously circumvented, because the formless and binding legacy contract would be in fact created. This danger would be still greater according to the case law, which re-interprets a void last will into a donation mortis causa. 3. A donation mortis causa exists when the parties agree on the suspensive condition that the donee survives the donor. The donation which merely becomes effective on the donor s death or the donation under the resolutive condition that the donor survives the donee are not governed by the article 562, unless the donor retains the right to dispose of the donation’s object. Moreover, the donation mortis causa will be treated as the donation inter vivos when it is carried out by the donor.

Generational transition and transfer “mortis causa” of family business in Spanish Law

The most crucial challenge for family businesses is the transfer to the next generation. It affects both the leadership and the ownership of the enterprise, whether individual or corporate. Transferring the ownership of the organization at the time of the death of the owner, raises important questions in the Spanish Civil Code system, in which inheritance contracts are not allowed, and there are rigid forced heirship provisions, which limit the testator's freedom. The correct and appropriate transmission of the family business requires adequate planning, which must lead to write a will -to avoid intestacy-, and make use of those special mechanisms that contemplate the payment of the forced heirship with money outside the state, as well as those others allowed in Spanish law that help to channel the phenomenon. Succession planning also requires being vigilant to comply with the legal requirements for obtaining benefits in inheritance tax.

Bienes digitales personales y sucesión mortis causa: la regulación del testamento digital en el ordenamiento jurídico español

Given the importance acquired by digital goods in our lives, it is necessary to assess the possibility of their disposition mortis causa, however, while some digital assets can be transmitted mortis causa, others cannot be because they have a marked personal character. The objective of this article is to analyze the figure of the digital testament in the Spanish legal system, based on the theoretical and normative assumptions of Succession Law and the post-mortem protection of digital assets. To this end, are studied, the main doctrinal and legislative positions that exist in relation to the types of dispositive instruments, their legal nature, content and scope, as well as the main obligations of those in charge of fulfilling these manifestations.

Captatoria conditio: meaning and admissibility in the light of freedom of testation. Analysis of selected legislations of Western European countries

The purpose of this paper is the presentation and analysis of the testamentary disposition, present in some foreign legal orders, known by the Latin name captatoria conditio, being a particular type of conditional appointment to inheritance. The analysis includes functions of captatoria conditio and axiological doubts related to it. In the research, the formal-dogmatic and comparative methods were used, which allowed the analysis of the form and functions of captatoria conditio and its prohibition in foreign legal orders. Conducted in such a way, the research led to the conclusion that the particular systems of the law of succession include different regulations regarding validity and effectiveness of captatoria conditio. On the basis of the analysis of the functions of captatoria conditio, this paper presents the thesis that in the case of such a disposition mortis causa there is not any excessive interference with the autonomy of the beneficiary mortis causa because he or she is always entitled to reject the inheritance. This conclusion speaks for the admissibility of captatoria conditio if the conditional appointment to inheritance is possible in a given legal system. Axiological doubts do not give arguments for the prohibition of captatoria conditio.

Poklon za slučaj smrti u srpskom pravu

Poklon za slučaj smrti u srpskom pravu

DONATION IN PROSPECT OF DEATH (DONATIO MORTIS CAUSA)

Donation in prospect of death represents a legal transaction witha long legal tradition. This institute shares common Roman legal roots with atestament and legacy. In different time periods of the development of Roman law,donatio mortis causa had variable legal nature, with the dominance of the onecreated in the time of Justinian’s law wherein donatio mortis causa representeda legacy. It was an unencumbered desposal of a donor for the benefit of a doneewith effect after the death of the donor, under the condition the donee outlivedthe donor. As such, donatio mortis causa could be revoked.The disputable legal nature had marked further development of a donation inprospect of death.Hence, ACC accepted double nature of a donation in prospectof death, as a legacy and as a donation contract, while SCC accepted Romanconception. Such divergent interpretation has remained to date, since donatiomortis causa has not been regulated neither by current contract nor inheritancelaw. It is, generally, believed that donatio mortis causa represents a type ofdonation contract inter vivos, wherein the handing over of the object of donationhas been postponed until the death of the donor. It is a donation contract enteredinto under suspensive condition that occurs at the moment of death of the donor,and the condition is for the donee to ourlive the donor. If the donee happens todie before the donor, his heirs have a right to request handing over of the objectof donation.Donatio mortis causa contract, as a rule, is irrevokable.

Legal Requirements for Pious Dispositions of Will According to the 1983 Code of Canon Law

The article examines legal regulations concerning pious dispositions of will contained in the 1983 Code of Canon Law. The research problem, that is, identification of the legal requirements for a lawful acceptance of pious will, indicates that anyone can effect voluntary dispositions of property for pious causes (c. 1299, §1), if he has the capacity to perform acts in law, subject to canon 668, §5. The legislator distinguishes three ways of disposing of property for pious causes: inter vivos (e.g. by a donation agreement), 2. mortis causa (e.g. by a will and testament, a testamentary legacy, or legatum), and 3. through trust for pious causes (c. 1302). In adopting pious dispositions of will, not only canon law, but also civil law should be respected, without prejudice to the supervisory authority of the ordinary bishop expressed in canon 1301, §§1 and 3; canon 1302, §§1 and 2, and canon 1304.

Donation in contemplation of death as an example of datio ob rem in Roman law

Donation in contemplation of death was one of the basic examples of datio ob rem which is an essential element of condictio causa data causa non secuta, which is the Roman root of the contemporary concept of performance rendered for an intended purpose that has not been achieved within the meaning of art. 410 § 2 of the Polish civil code of 1964. In this article the legal nature of this donation and various forms of its application are described. Particular attention is paid to the purpose of the donor’s performance in relation to the general idea of “giving on purpose” (datio ob rem) in Roman law. Moreover, the evolution of donatio mortis causa towards its assimilation with the institution of Roman inheritance law, especially legacies, is shown.

Scaevola D. 32,37,3: Fideicommissum a debitore oder a donatario relictum?

Abstract Scaevola D. 32,37,3: Fideicommissum a debitore or a donatario relictum? Classical Roman law did not know revocation of a gift. Thus, the donation in D. 32,37,3 is neither a revocable gift nor a donatio mortis causa. On the other hand, the son could be burdened with a fideicom-missum because he was debtor of the deceased. The relation between his obligation and the fideicommissum is the key to understand Scaevolas decision.