Mortis Causa Research Articles

The Formation of Forced Heirship in Roman Law

The freedom to make a will was established in Roman law. The core of a testament was heredis institutio which performed an important function to prevent division of family property by appointing one of testator’s children as heir. Generally, the testator gave care to his children who were not designated as heirs by a disposition inter vivos or mortis causa such as dotis datio or legatum etc. As Rome transformed into a commercial society, the abuse of freedom to make a will－which did not care his close relatives (among others liberi), as a result, they suffered unexpected disadvantages－came to the fore as a serious social issue. Roman lawyers and praetor had attempted to solve this problem, also many constitutiones were made during the Roman Empire for this. The rule of praeteritio, bonorum possessio contra tabulas, and querela de inofficioso testamento played an important role to limit the freedom to make a will for the protection of the close relatives of testator. This problem eventually came to an end by the time of Emperor Justinian by the actio ad supplendam legitimam which was the origin form of the forced heirship. The changes of the Roman law of succession vividly illustrates the tension between the freedom to make a will and protection of the close relatives of testator. But one thing has not changed is that the freedom to make a will took priority over the protection of the close relatives at least in classical law. Despite of the fundamental paradigm shift from agnatio to cognatio, the testator was able to dispose of his property at will in effect as long as the testament was written in accordance with the law. The introduction of querela de inofficioso testamento actually forced testator to consider his close relatives in order not to be cancelled his testament for reason of inofficiosum, it meant he violated his duty to care his close relatives. In such a way, however, the close relatives were protected only indirectly. By the time of the Emperor Justinian comprehensive reforms of the law of succession were made. Among them he granted the remedy of actio ad supplendam legitimam to whom received less than his quarta debitae portionis. At the same time, Emperor Justinian explicitly enumerated the reasons for disqualification which justified the exclusion of the inheritance by a testator. These measures can be evaluated as attempts to find a balance between freedom to make a will and the protection of the close relatives.

The Testamentary Trust: Is it a Trust or a Will? Hanekom v Voigt 2016 1 SA 416 (WCC)

The recent judgment in Hanekom v Voigt 2016 1 SA 416 (WCC) is evaluated in the light of the traditional understanding of the testamentary trust. It is evaluated from both a testamentary disposition and a trust law perspective, with the aim of determining whether the Hanekom matter has touched a particular nerve in the will versus trust debate as far as the trust mortis causa is concerned. From this judgment, the importance of differentiating between the spheres of testamentary law and trust law, to ensure legal certainty, became clear. The court submitted that the mere fact that a trust happens to be of testamentary origin should not influence the evaluation of the validity of the amendment of the trust instrument. The court underlined the dynamic nature of the trust figure in referring to it as a "supple, living institution." The nature of the powers vested in the Master of the High Court, both as far as the appraisal of the trust instrument and the appointment of trustees are concerned, is also considered in the judgement. In evaluating the facts of the case, the court recognised the applicability of the Oudekraal principle as it has been developed in the field of administrative law. The writer comes to the conclusion that, while the Hanekom case does illustrate some legal challenges in the last will and testament environment, it also offers a number of valuable lessons for will-drafters. The approach by the court is encouraging, as it shows some sensitivity for the true nature of the testamentary trust. The confirmation by the court that a testamentary trust is in the first instance a trust and not a will per se is to be welcomed, and is a true and realistic reflection of the nature of the institution.
 

Wymagania prawne dotyczące pobożnych rozporządzeń woli według Kodeksu Prawa Kanonicznego z 1983 roku

This paper concerns the legal provisions on dispositions of pious causes included in the 1983 Code. The question which the Author addresses is: what are the legal requirements for the legitimate acceptation of pious causes. The content of the study shows that everyone is able freely to dispose of his or her goods for pious causes (can. 1299 § 1), if he or she has the capacity to carry out legal acts, without prejudice to the prescript of can. 668 § 5. There are three ways to carry out of pious dispositions: inter vivos (e.g. donation); 2) mortis causa (e.g. testament, last will, legate); and 3) trust for pious causes (can 1302). In order to accept dispositions for pious cause it should be observed not only canon law, but also civil law, without prejudice to the supervisory power of the Ordinary provided in can. 1301 §§ 1 and 3; can. 1302 §§ 1 and 2 and can. 1304.

OCHRONA CZŁONKÓW RODZINY SPADKODAWCY NA TLE HISTORYCZNOPRAWNYM ORAZ PRAWNOPORÓWNAWCZYM

Protection of the Deceased’s Family Members in the Historical and Comparative PerspectiveSummaryAll of the contemporary legal systems provide special regulations which protect the deceased’s family members from order’s occurring in his will. Freedom of the testacy is one of the most important rules in the law of successions. Nevertheless it should have limits – the most common example of that situation exists when deceased’s orders omits entirely the members of his closest family.The origins of that protection could be found in the Roman Law. This legal system creates two types of protection – “counter-will formal succession” (previous in the Roman Law evolution) and “counter-will material succession”.According to the first one, testator has a duty to disinherit all of his sons (sui heredes) in the clear and precise words (exhereditatio nominatim). He should also disinherit all of the other members of his family (such as daughters or grandchildren); however he has possibility to do so in a general clause. His will would be overthrown if he has not disinherited members of his family. In that case entitled persons acquired the status of the heirs. This system gave no property rights to descendants of the deceased - they had only right to be an heir or to be disinherit (which was described in the rule that sui heredes should be set up as heirs or should be disinherit - sui heredes aut instituendi sunt aut exheredandi).According to the second type of protection if deceased did not gave part of his property (so called pars legitima) to the entitled persons they have a legal claim (querela inofficiosi testamenti) to declare his will void. On the ground of that regulation existed fiction that testator, who disinherit the members of his closed family, acting in the mental disorder (cum colore insaniae) and violates his father duties (action contra officium pietatis). Roman Law protects the entitled person also against all of the donationes (those performing during the live of testator and mortis causa donations) in which deceased try to evade statutory protection of his family members.

SZCZEGÓLNE FORMY TESTAMENTU W PRAWIE WŁOSKIM

Particular Forms of a Testament in the Italian LawSummaryThis article presents a composite regulation regarding particular forms of a testament in the Italian law including its similarities and differences to the Polish law. It discusses the permissibility of drawing up a testament in a particular form. It also presents the process of its drawing up including the persons engaged therein and the procedure of confirming its content. The legal nature of the act a mortis causa is analysed in both legal systems, underlining the subsidiary character of the particular form of a testament and its limited time effect.

Posibilidad de variación de adminicula iuris en el derecho común y en los derechos propios en Europa y en las indias. Una demostración en tema de testamento

Para salvaguardar, de manera cautelar, las disposiciones mortis causa, las normas exigen una determinada solemnidad. El testamento como categoría jurídica no cambia, pero si pueden ser objeto de variaciones normativas aspectos formales del mismo, partes secundarias, los adminicula iuris.

Was last will prescribed in The Code of Hammurabi?

Was last will prescribed in The Code of Hammurabi?

A Late Antique donatio mortis causa

Abstract The article offers an edition of a Greek papyrus belonging to the Austrian National Library which contains a fragment of a donatio mortis causa drawn up in Hermoupolis Magna. Donationes mortis causa are documents used in Roman and Byzantine Egypt for disposing of one’s property in anticipation of death. Since the present papyrus seems to date from the last third of the 6th century A.D., it provides us with one of the latest attestations of this kind of document.

A Comparative Inquiry Into The Legal Regime Of Mortis Causa Donations In Some Continental-European And Common Law Legal Systems

Abstract The mortis causa donation is a particular form of donation, made in the anticipation of death. Its regime was subjected to particular different norms in some continental-European legal systems, such as the French and the Romanian ones, and in some common law legal systems, such as the English and the American ones. This article investigates in a comparative manner the different legal solutions regarding the status of mortis causa donations in French and Romanian legal systems, on one hand, and in the English and American legal systems, on the other. Although in the history of French law the donation mortis causa was recognized under the customary norms of the ancien droit, contemporary continental-European legal systems do not recognize an intermediary gratuitous act between testamentary provisions and donation contracts, while in the common law legal systems the mortis causa donation is recognized as a particular form of gratuitous transfer, but it has different legal effects in English and American legal systems.

Development of Testamentary Inheritance Institution in Albania

Inheritance is an ancient institution recognized by the Roman law in the Twelve Tables (303 BC) in which the testamentary right was given priority. The testament, in its written form, was initially observed in wax tables, then called “praetorian testament”, which as a historical period corresponds to the Classic one (late period of ancient Rome). The testament is a legal action made by the testator through which he disposes his property after death. The testament is an action upon death, personal, that can only be done by the testator and not another person. Generally there are two forms of testaments, ordinary and special testaments. During the years 1912-1929, testamentary inheritance was regulated according to the religion the testator belonged to. The Civil Code of 1929 defines testament as a revocable act through which the testator disposes all or part of his property, referring to the time after his death, in favor of one or more persons. During the communist dictatorship, testamentary heirs could be legal heirs, state authorities and social organizations, but in any case it was not allowed to dispose property via testament in favor of the church or religious institutions. Pursuant to the Civil Code in force, the testament is a legal action arising out of death or mortis causa. In such cases when the testator disposes only a part of his property, for the property which is not disposed by testament, legal inheritance shall apply. This paper analyzes the testament institution in Albania during various periods up to the Civil Code in force, that of 1994. DOI: 10.5901/mjss.2015.v6n3p36

EL "ANIMUS DONANDI"

To elaborate the classic concept of roman donation (non mortis causa) and donation between strangers, it has been discussed the need for subjective and objective elements. This is because donation is not a typical formal act, but rather a cause. The existence of subjective elements of donation has meant the creation of an entire doctrine regarding animus donandi as an additional element by part of the roman doctrine. The purpose of this paper is to clarify whether the subjective element is necessary for there to be a donation or it is just enough with the cause of donation. In order to explain the above: i) the state of affairs in relevant roman doctrine will be displayed ii) subjective element in jurisprudential sources will be studied; and iii) the imperial constitutions relevant to the topic will conclude the explanation. Finally, as an attempt to ascertain, the objective element (the cause of donation) or the subjective element (animus donandi) in the person of the donor will become established as the only one required

Legal nature of affatomia

In Salian and Ripuarian Code affatomia represented a bilateral legal transaction that was aimed at changing of the scoped of heirs determined by the customs, at least insofar being applied in the absence of biological descendants only. However, almost all further similarities in the field cease at this point. The form for using affatomia with Ripuarian Franks was much simpler than the one with the Salian Franks. Unlike the Salian Franks, affatomia could by all odds be used by Ripuarian Franks spouses in determining each other for a heir. Legal nature of the Salian Franks affatomia is most similar to the mancipatio familiae type of will in the Roman law (which does not mean it emerged from this law), while its form in the Ripuarian Code is much closer to testamentary adoption. As with Ripuarian Franks, affatomia seems to have definitely produced legal effects only after the death of the disposant, while its legal effects with the Salian Code performed inter vivos. Contemporary authors are trying to designate the legal nature of legal affairs from the early development of human and legal civilization through modern institutes that represent the completion of their evolutionary path. Taking the inheritance contract of the German or Swiss law, or the future assets donation of the French law, for example, and then comparing them to affatomia and thinx is an anachronism. This is evident by the fact that the legal nature of these ancient Germanic institutes can not be viewed unilaterally, but always through a combination of those institutes which we know today as adoption, gift or mixed donation with retention of different modalities for the transferor or the testator (usually usufruct). In this sense, if we are looking for a inheritance agreement in the Middle Ages, the contract in which a person determines other person for his/her universal or singular successor in the modern sense, we will certainly not find one. However, if within this institute we see bilateral legal transaction whose subject is the future legacy or exactly specified legal issue from legacy, which aims to voluntarily change the law and customs of the established circuit of heirs, who partially performed legal effects among the living, and partly in case of death, the one that differs from the legacy through its irreversibility, we will then find its roots with the Franks and the Langobards, while its first clear shapes and forms we will find as early as XIII century. If we start from this initial premise, bearing in mind that different nations in different historical epochs attained a certain level of cultural, economic and legal emancipation, it is possible to draw another conclusion. It is the fact that disposal of assets in case of death, which meant some form of approval of the one in whose favour assets were disposed (what we would call today a bilateral legal transaction), has always preceded legacy as a unilateral legal transaction. Further on, it means that affatomia and thinx, as well as Morgengabe, can be considered roots in Germanic contractual inheritance law. But if we follow the development of an idea, abstracting the inevitable differences, Babylonian nudunu, Islamic vassijet, donatio mortis causa (from Babylon, through the Spartan and Roman law, to the Mirror of the Saxons), Vergabungen of the Schwabenspiegel, especially the Roman mancipatio familiae last will, can all equally be regarded as the roots of the contractual inheritance.

LEGAL INHERITANCE IN FRANCE AND IN ALBANIA: COMMON ELEMENTS AND COMPARATIVE ASPECTS OF SUCCESSION TRADITIONS

Inheritance begins with the birth of ownership, and continues with property rights. Inheritance is an ancient tradition, which the Romans recognized in the Twelve Tables (303 BC), in their priority of testamentary rights. Such principles have their origin in a primitive community, although, at that time, there were no genuine inheritance rights. Inheritance is the practice of passing on property, titles, debts, rights, and obligations upon the death of an individual, named the deceased (the person who dies), to the heir, who is the person entitled to receive a share of the deceased's property. This is an action of mortis causa, which happens due to the death of the deceased. The study of inheritance creates interest, because it relates to the law from the time of the deceased’s death, despite the advent of any disagreement. Inheritance by law is applied in cases when the person leaving the inheritance has not made a will, or has made a will only for a part of their property, or when the will is declared invalid. The inheritance initiates, when the deceased dies by natural death or civil death. It initiates in the place where the deceased had their last residence. The major economic and political change that occurred in Albania after the fall of the communist dictatorship, was on 1 November 1994, with the enactment of the Civil Code for the Republic of Albania. The third section and articles 316-418 of this code deal with inheritance. The French Civil Code was published on 21 March 1804. In this, the third book covers different modes of acquiring property, and under the title of “Successions” deals with inheritance, from article 718 onwards. The French and Albanian inheritance traditions share similarities and disparities. In this paper, we discuss and compare these two inheritance instruments.

Grafting the English Trust on to the code civil. Important Australian jurisprudence, and the potential for negligent neglect of critical equitable principles, in advising family provision claimants. Trustee disclosure, and the importance of Jersey trust jurisprudence. Cyprus claims a place in the sun for its trusts, and Simon Taube QC has useful news for Mr Osborne in his hunt for

Grafting the English Trust on to the code civil. Important Australian jurisprudence, and the potential for negligent neglect of critical equitable principles, in advising family provision claimants. Trustee disclosure, and the importance of Jersey trust jurisprudence. Cyprus claims a place in the sun for its trusts, and Simon Taube QC has useful news for Mr Osborne in his hunt for

Il diritto, testo di specialità. Il caso spagnolo

The present work analyses those lexical, syntactic and morpho-structural characteristics that make legal a special text, by starting with an overview of the main theories formulated in order to define the study object and the boundaries of a specialty text. So, through a twofold analysis perspective, special language and text, the paper examines the Spanish case’s peculiarities, making a distinction between the different text kinds, and focusing on the content organization. The work represents a premise for a more articulated one, having as its object the mortis causa acts, considered in a comparative-contrastive perspective -Spanish-Italian

Rzymska koncepcja darowizny na wypadek śmierci w komentarzu Paulusa do lex Iulia et Papia (D. 39.6.35.2–3)

The most important feature of the Roman donatio mortis causa was its potentially returnable character. This donation was applied in diff erent forms. In its basic form it consisted in gratuitous transfer of ownership to the donee motivated by the imminent danger to donor’s life. Donor could claim the recovery of the donation if the danger to his life ceased to exist or the donee died. In the postclassical law another form was recognized, namely donation motivated by the sole contemplation of death, that means without any requirement of the imminent danger to donor’s life or other particular circumstances. The donor’s aim was on one hand that after his death the subject of the donation would belong to the donee, not to the heirs, and on the other hand that he would be able to reclaim it if the danger to his life ceased to exist. Donatio mortis causa became perfect, that means took full eff ect, after the donor’s death provided that the donee was still alive at that time. This form of donation was applied to circumvent the restrictions of Roman inheritance law, especially those related to certain groups of persons. In the course of development of law donation mortis causa was gradually assimilated to the institutions of inheritance law and fi nally in Justinian’s law it was equalized with legacies.

Institute of legacy in the testament

Globalization as the new world order has brought to a more planned human life. This planning not only entails the individual life, but it must plan for a longer term future as well. When we talk about long terms, we immediately think about analytical skills of Roman lawyers in creating the mortis causa institute (effec-ting upon death).A characteristic of this paper comes with the latin term “leg”. The testament is a statement of will, which defines the heirs and the inheritance. While the Testament is a rather more elaborated work, the Legacy is a special provision, an order in the testament, addressed to the heirs, to submit an item or a material value to the privileged persons, called the Legatar. The Legatar, as the benefi-ciary of this provision is only a beneficiary, and does not take res-ponsibility for the debts of the inherited property.Planning of wealth may serve various functions or purposes. The Legacy represents a balance between the freedom of disposing inheritance in a free manner, and limitation of a part called nece-ssary fortune. The money or the values we decide to give away with the Institute of Legacy are not about their material value, but the significance of their investment, the goal and the best reminis-cence of the testators’ contribution in generations.

Gift on the occasion of death

A gift on the occasion of death (donatio mortis causa) in Roman law was a contractual disposition, made during the life of the donor, and in his contemplation of his own death, which took effect upon the donor's death. The donee had no claim against the donor during the donor's life. Only on the occasion of the donor's death, had the donee assumed property rights over the subject matter of the gift. The transfer of property was conditional upon the donee outliving the donor. In contrast, a post-mortem gift (donatio post mortem) a contract modality with a suspensive term (délai suspensif). It gave the donee the claim against the donor during the donor's lifetime, but delayed until the occasion of the donor's death. Here, the transfer of property rights was not conditional upon the donee outliving the donor, as the donnee's inheritors could succeed to his rights against the donor. A post-mortem gift and a gift on the occasion of death had significantly different legal effects in Roman law. Still, the confusion among the two is not uncommon in contemporary legal doctrine and legislation. For instance, some agreements are sometimes labeled as gifts on the occasion of death, even though they do not possess characteristics of the Roman donatio mortis causa. On the other hand, a post-mortem gift is occasionally being assigned certain characteristics, which are in fact typical for a gifts on the occasion of death.

Reconocimiento de Paternidad: Tópicos y Cuestiones Civiles

In the present text it is tried: 1. To offer a justification of the figure of recognition. 2. To investigate its scope of operation in the contexts of parental recogni- tion procedures and its contexts. 3. To examine the closest legal qualifications that can be led back. 4. To analyze the characteristics of recognition. 5. To review the subjects taking part in this bilateral relation and its position: 5.1 The person who can recognize and 5.2. The person who can be recognized. 6. To analyze the expression of will necessary to recognize. 7. To examine the formalities of the act: 7.1. The formalities by way of solem- nity. a) the recognition by extrajudicial, inter vivos act. c) the recognition by mortis causa act: the testament. b) the admission in the judicial track. 7.2. The prove and publicity formalities. 7.3. The consequences by lack or omission of formalities. 8. To see the forms to leave without value the recognition directly.

Do Intergenerational Transfers From Elderly Parents Increase Social Inequality Among Their Middle-Aged Children? Evidence from the German Aging Survey

This study examines the consequences of private intergenerational transfers from elderly parents to their middle-aged children with respect to social inequality within the children's generation. With use of the nationally representative cross-sectional sample of the German Aging Survey, descriptive analyses as well as multivariate logistic regressions are used to identify the effects of three different types of private intergenerational transfers in the middle-age group (40-54 year olds, n = 1,719 for inter vivos and n = 1,446 for mortis causa transfers). Transfers from parents or parents-in-law during the last 12 months-many of them smaller ones-are not significantly related to children's income. Separated and divorced children have significantly higher probabilities of receiving such transfers, indicating a need-directed family transfer process. Larger transfers before the last 12 months are need directed as well and moreover positively related to income position. Bequests, finally, are positively related to income position while having no need component at the time of observation. Whereas larger monetary transfers and bequests may increase social inequality in the children's generation, a substantial part of the regular monetary flow from elderly parents to their adult children buffers situations of need. Public policy should take into account these different effects. Reducing the general level of public pensions would weaken regular transfer giving and thus lead to more inequality in the children's generation. Higher taxation of very large transfers and bequests would have the opposite effect.