Testamentary Freedom Research Articles

Javni poredak i nužni deo

Testamentary freedom is one of the basic pillars of inheritance law in any legal system. In Eurocontinental law, it is limited, inter alia, by the right of the heir to a statutory portion (forced heirship). On the other hand, Anglo-Saxon law does not recognize the forced heirship. In Europe, there is a tendency to narrow the circle of mandatory heirs. Testamentary freedom is guaranteed in modern Constitutions, while, on the other hand, it is disputed whether the right to inheritance, guaranteed by the Constitutions, also includes the right of heirs to a mandatory portion. In German law, which is based on the decision of the Federal Constitutional Court from 2005 the right to a forced heirship is considered as a part of public order, even as a part of international public order. On the contrary, in France and Hungary, in situations of crossborder inheritance, the right to a forced heirship does not belong to the domain of international public order. Considering the language and aim of Articles 58, 59 and 66 of the Constitution of the Republic of Serbia, it is difficult to argue that the heir’s right to a mandatory share is covered by the constitutional guarantees enshrined in Articles 59 and 66. On the contrary, Article 58, which guarantees peaceful enjoyment of property rights, and Article 23 (2), guarantee freedom of testamentary disposition. The same is the case with the European Convention on Human Rights, which guarantees freedom of testamentary disposition, but not the right to inherit. A foreign law that does not recognize the right to a forced heirship is not contrary to domestic public order. It is possible that the foreign law contains some kind of functional equivalent that aims to financially secure the mandatory heirs which is the case in Anglo-Saxon legal systems. The application of the lex fori fori allong with the application of the lex successionis is contrary to the principle of fairness in Private International Law. Also, it results in dépécage which is undesirable in PIL and runs counter to the principle of the unity of inheritance property. The application of foreign law governing the inheritance in the Serbian PIL could be limited only in exceptional cases. For example, when the foreign applicable law does not recognize any functional equivalent to a mandatory portion or when the foreign applicable law does not recognize the decedent’s minor children any claim to the inheritance property, so that they remain deprived of means necessary for life and, therefore, fall under the burden of state social assistance. Also, for the application of the part of lex fori, it would be necessary that the case of crossborder inheritance is closely related to domestic legal order. For example, that the mandatory heirs are citizens of Serbia with domicile in Serbia.

The Concept of Wills in Nigeria: Reflections on the Freedom and Limits of Testamentary Power

Life is valued, living each day is an opportunity that we often take for granted, and the thought of leaving this world is appalling, this fear alone makes many shy away from the reality of death. However, death is inevitable and comes without a signal, how or when a person departs this world is only known to Allah, the All-knowing, all wise. We have to make sure that we are prepared everyday to join the hereafter, one of such preparations is the writing of a valid will because the responsibility we are assuming in our life time will become a difficult task in our absence.it is our duty to leave clear instructions as to how such task and responsibilities will be dealt with on our demise. In order to prevent family destructions and wrangling after his demise, the testator must ensure his wishes are clearly and definitely expressed in a valid and enforceable will strictly in compliance with S 9 of the wills Act of 1837 and the wills amendment Act of 1852. Islamic law does not require strict formalities for the execution of a will, it is sufficient that the intention of the testator is manifestly clear. Under statutory law according to the wills Act of 1837 a testator has absolute testamentary freedom, under Islamic law and customary law, a testator’s power to dispose of his will is curtailed by law. This paper examines the concept of wills under statutory law, Islamic law and customary law and concludes that complete freedom is the exception rather than the rule and that a will under Islamic law can be legitimately accommodated and practically implemented within existing statutory laws, so far as they are compatible with the principles of Islamic law. Under customary law a testator is restricted to dispose of properties subject to customary law but has the capacity to make a will under the wills Act.

Is Family Provision’s Limitation to Testamentary Freedom Justified or Not?

Testamentary freedom is a fundamental principle in testamentary inheritance and bequests, and it is a principle that is generally accepted in all countries of the world. The theoretical basis of testamentary freedom derives from the autonomy of will in civil law, a principle that was developed considerably in the Age of Enlightenment. Family provision is a subsequent development that limits the freedom of testamentary freedom. This essay analyzes the content of family provision, the value of testamentary freedom and family provision, and the nature of testamentary freedom from three perspectives, and shows that only freedom based on rules is true freedom. It is argued that family provision is justified to restrict the principle of testamentary freedom.

중국 유언의 자유 제한과 필유분(必留份)제도

고대 중국 유언에 관한 율령을 보면 한대(漢代)부터 유언에 관한 제한이 있었다. 당대(唐 代) 및 송대(宋代)가 ‘호절(戶絕)’의 경우 유언의 자유를 인정하였고, 명·청(明·清)대에 이르러 ‘관위검교(官爲檢校)’제도를 시행하기 때문에 ‘호절(戶絕)’의 경우 호주는 재산을 분배 할 자격이 없었다. 근대 중국의 대청민률초안, 민국민률초안, 중화민국민법에서 유류분제도 를 규정하였다. 그러나 유류분에 대한 규정이 불충분하고 당시 역사적 정치적 이유로 이 제도가 제대로 시행되지 않았다. 현행 중국 민법은 유언의 자유를 제한하는 필유분 제도를 채택하고 있다. 그러나 이 제도는 유언의 자유에 대한 제한 부족, 법관의 과도한 재량 등의 문제가 여전히 존재한다. 2000년과 2001년에 유언의 자유한도에 관한 전형적인 사건이 잇 따라 등장하면서 중국에서 유언의 자유를 더 잘 제한할 수 있는 ‘유류분 제도’ 도입에 대한 학계의 학술적 논의가 활발해졌다. 20년 동안 중국 학계는 중국의 현행 필유분 제도를 시급 히 개선해야 한다는 데 거의 공감대를 형성해 왔다. 중국 유언의 자유 제한 개선의 방향은 크게 세 가지다. 첫째, 현행 필유분제도를 개선하면 되며 유류분제를 도입할 필요가 없다. 둘째, 현행 중국의 필유분을 대체할 유류분제도를 도입하는 것이다. 셋째, 유류분 제도를 도입하면서 필유분 제도를 존치시켜 두 제도를 병행하는 것이다. 한국 현행 유류분제도는 부양 차원에서 문제가 있는 게 사실이다. 현행 중국민법상 필유분 제도가 소련의 필계분 제도에 토대를 두고 있는 것이기는 하지만, 한국의 전통적 가족관념은 중국의 유교사상에 기초를 두고 있으므로 중국의 고대-근현대 상속제도상 필유분 제도에 대해 이해하는 것은 한국 유류분 제도의 근원을 탐구하는 데에도 도움이 된다. 또한 비교법상 중국에서의 유언 의 자유 제한과 필유분 제도에 대한 탐구는 한국 유류분제도의 기능과 본질에 대한 이해를 더 깊게 하는 측면이 있다.

Do Islamic-law wills contravene the common-law prohibitions against delegation of testamentary powers and incorporation by reference?

Although the Constitution of the Republic of South Africa, 1996 provides for the enactment of legislation recognising various systems of personal and family law, no legislation has yet been enacted to recognise Muslim personal laws of marriage, divorce or inheritance. This has not precluded South African Muslims from implementing Muslim personal laws in their private lives, with the assistance of various Muslim ulama bodies. In the sphere of inheritance, Muslim testators ensure that their estates devolve according to the Islamic laws of inheritance by incorporating the Islamic laws of inheritance into their wills. They also delegate their testamentary powers to ulama bodies to determine their Islamic-law heirs. This article explores whether the incorporation by reference of Islamic inheritance law into Islamic wills contravenes the common-law prohibition against incorporation by reference. It also discusses whether delegating testamentary powers to ulama bodies potentially contravenes the commonlaw rule against delegating testamentary powers. Although these practices may contravene the common-law rules, they should be accommodated by developing the common law to uphold the constitutional rights to religious and testamentary freedom.

OSOBITOSTI NASLJEDNO-PRAVNOG UREĐENJA CRESKO-OSORSKOG STATUTA IZ 1441. GODINE

Particular attention in this research is paid to the regulation of property relations arising after the death of the testator in the Statute of Cres-Osor. The provisions regulating inheritance relations among family members in the content of this source confirm the importance of the family as a community as well as the importance of family property within this late mediaeval commune. In this regard, the Statute of Cres-Osor shows specific features. The equality of male and female descendants when it comes to intestate inheritance is marked by the inheritance regulation of the rare communes of the Kvarner region, including the Cres commune. In this regard, it is important to determine the position of women in marriage and family. In a period when under the influence of the reception of different legal sources, primarily of the Venetian and Byzantine ones, most Adriatic communes adopted almost identical features of inheritance law, in which the inheritance of family property is linked to a certain degree of kinship. The Statute regulated testamentary freedom and free disposal of property according to the will of the testator or for religious purposes. As the systematic analysis of the legal provisions of the statute is merely the subject of the discussions in academic community, a detailed analysis of hereditary relationships regulated by the provisions of this source will certainly contribute to understanding of the legal reality of this mediaeval island commune. This research conducts a detailed analysis into the legal source, and compares specific provisions of other close communes in order to analyse inheritance by will and intestate inheritance regulation as well as other important issues such as the position of certain categories of heirs. Moreover, it aims at detecting the origin of a separate regulation of hereditary relations in this island community.

Combining Legal and Economic Theory. An Interdisciplinary Approach to Dutch and Polish Family Provisions in Succession Law

Although testamentary freedom is an important principle in succession law, legislators and judges across the world have recognized the importance of certain family members by granting them mandatory claims in the inheritance of their deceased relative (in spite of wishes of the deceased). This article focuses on these rights. The goal is to introduce the Dutch framework of imperative succession law and to demonstrate the possibilities of combining the legal and economic discipline to deepen knowledge on these provisions. Whilst examples will focus upon succession law, the concepts will be described in a general manner. This might inspire researchers to apply a similar interdisciplinary approach in other fields of law. The imperative provisions that currently exist for family members in the Netherlands can be divided into two types of claims. The first is the legitime, a fixed claim for children of the deceased. The second type are the other statutory entitlements that cover a specified range of situations in which judges have freedom in deciding upon the requests of family members. However, this discretion raises many questions on the way judges should handle such claims. A combination of law and economics can aid in describing and interpreting the law, for example by defining the need for support that is often required for a successful claim. By relying on economic data and theory, judges can come to a more consistent and substantiated way of establishing the need for support. The interdisciplinary methodology can also improve comparative legal research. The functional approach that is common in comparative legal research, assumes that law fulfills certain functions. Economic figures provide an objective basis that demonstrates what functions a law fulfills and to what extent this is done efficiently. This information can be used to compare the functioning of laws in different countries.

Restauratio Iustinianus. Despre reforma dezmoștenirii în dreptul succesoral român

The struggle between testamentary freedom and family protection is one of the enduring challenges in the field of succession law. This paper is exclusively concerned with the Civilian tradition, where efforts to bridge the gap between said ideals generally follow two main models. Some legal systems maintain the Roman model of allowing the testator or testatrix to lift the forced heirship in cases strictly provided by the law, whilst others prefer the Napoleonic paradigm of depriving the deceased of said power. Romanian succession law has experienced both models, with the former dominating the medieval and early modern law and the latter only introduced in the second half of the 19th century, with the legal transplant of the Code Napoléon. The present study argues that certain changes introduced in the Civil Code of 2009, specifically empowering the decedent to lift the effects of unworthiness and explicitly regulating the regime of disinheritance, foreshadow a return to the Roman paradigm.

THE RELATION BETWEEN FREEDOM OF TESTATION AND CONTRACTUAL FREEDOM FROM THE INHERTIANCE LAW PERSPECTIVE

Contractual and testamentary freedoms are the pillars of modern civil society and are manifested through the possibility of concluding a contract as inter vivos means of regular property exchange, or through testament as non-regular means of property disposition since its effect is attached to the testator’s death. The modern inheritance law is characterized by the trend of contractualization, thus some means of arranging post-mortal distribution of property (inheritance) appear in form of contractual disposition. Their introduction into some legal systems is under question, since they limit testamentary freedom, which is considered to be the consequence of the theory on absolute freedom of testation that is deeply rooted in some legal traditions. The aim of this research is to determine whether it is necessary to analyze freedom of testation and contractual freedom as opposite, or whether it is possible to observe them as complementary in some segments. For that purpose, the author manages to identify the points of approximation and distinction between these two freedoms, through their comparison. Furthermore, this problem is considered from the perspective of inheritance law, which is specifically discussed from the point of view of the legal effects of the inheritance agreement over testamentary disposition.

The admissibility of disinheritance and testamentary freedom

The article highlights the principles of inheritance law in the Polish legal system. Specific emphasis is placed on testamentary freedom, appointment to inheritance only on the grounds of two titles and a limited number of statutory heirs. The author analyzes the consequences that the drawing up of a will may have for the persons closest to the testator. The subject of the considerations is both the nature of a legal act which is a will, the requirement of the form of wills and the admissibility of testamentary dispositions. Attention is paid to the admissibility of disinheritance and its effects. The text aims to answer the question whether depriving descendants, spouses and parents of the legitimate portion extends or restricts the testamentary freedom. The adopted legislative structure assumes that everyone who has the testamentary capacity, full legal capacity, may draw up a will. The act does not limit in any manner who can be appointed as the testamentary heir or the extent of such appointment. The testator is free to decide whether and when a will is to be drawn up. It is an expression of the principle of testamentary freedom. Anyone who has full capacity to act lawfully may exercise this freedom to make a will or not. However, if a person exercises this freedom, the scope and form of dispositions made depend solely on this person. Testamentary freedom is expressed in certain ways. Firstly, by making a will, a testator may change the statutory inheritance, appoint whomever they want and are not limited in terms of shares. Secondly, a testator may exclude certain persons from inheritance. The negative will and disinheritance serve this purpose.

Posthumous control of copyright, its limitations and the public interest

Conducted as a desk research, this paper examines the interface between copyright and succession laws, the notion of testamentary freedom, its limitations and justification for its restriction. The paper draws on this examination to discuss the freedom of authors to dispose their copyright under testate and intestate arrangements, and posthumously control the use of their works under the Nigerian Copyright Act. Following this discussion, the paper identifies and examines the relevant provisions of the Copyright Act that can limit the capacity of authors to posthumously control the use of their works in Nigeria. The paper contends that authors’ liberty to transfer their copyright by testamentary disposition or operation of law, and control the use of their works posthumously, without public interest friendly limitations, can create an imbalance within the copyright system. This paper addresses the issues of whether public interest objectives may be achieved through the limitation in the extant Copyright Act, especially given the propensity for copyright misuse by authors in death, as well as during their lifetime, and what policy options may align the public interest with authors’ posthumous control of copyright. In resolving these questions, the paper draws on instances of copyright misuse in the United States of America (USA) and South Africa and situates them within the Nigerian context to shed light on the issues discussed.

The end to testamentary freedom

AbstractTotal testamentary freedom in English law came to an end with the passage of the Inheritance (Family Provision) Act 1938, since replaced by the Inheritance (Provision for Family and Dependants) Act 1975. The Act introduced the family provision rule, which allows disinherited family members to apply to court for a financial award out of the estate. This paper critically re-examines the parliamentary proceedings, held between 1928 and 1938, which debated the merits of testamentary freedom and the need to limit the doctrine by introducing the family provision rule, then already in force in many of the Dominions. There were strong social arguments in favour of redressing unjust disinheritances, pitted against core values of personal freedom and private ownership. The paper will show that there were compelling merits in introducing the family provision rule and the Act has stood the test of time.

Case report: psychiatric assessment of testamentary capacity in Nigerian subject

ABSTRACT Background Testamentary capacity is an orphan topic in most psychiatric literatures especially in Nigeria. Trends of events are however changing as knowledge advances. Aims To appreciate the legal and medical interface, aid our understanding of the factors in the assessment of testamentary capacity and mastery of the principles involved. Method Vignette is made of one of the one of the two cases that were seen in Psychiatric Hospital Uselu, Benin-City, Edo State, Nigeria between March and May 2012. Theoretical basis and methodical adaptation in different instances as they relate to assessment of testamentary capacity were discussed. Results Testamentary freedom is limited by customary law which is not uniform because of cultural heterogeneity in the Nigeria setting. More detailed assessment is required when assessing testamentary capacity in special population. Conclusion Psychiatrist should prepare for the possibility of more of such request in the future.

Testamentary trusts and capricious testators

Abstract The notion that a trust may fail because it serves no useful purpose, or reflects merely the whim or fancy of the testator, seems to fly in the face of testamentary freedom and, in particular, the testator’s right to dispose of his estate in whatever manner he chooses subject only to the court’s control over illegal or immoral conditions and the making of reasonable financial provision for his family and dependants. So how have the courts grappled with these two competing aspects of public policy? The tension between these two competing aspects of public policy forms the subject matter of this article.

Testate Succession Under Ukrainian Law

The article analyses the legal aspects of the development of testate succession in Ukraine. In particular, it focuses on the notion of the will, the capacity of its making, special types of wills and their form. The content of wills is being viewed through the principal of testamentary freedom. The article offers the solution of such controversial issues of Ukrainian succession law as the legal nature and content of joint wills, the consequences of the death of one of the spouses, as well as the nullity or dissolution of marriage for joint wills, the requirements to the conditions in conditional wills. It critically examines the order of recording of wills. The article reveals the legal nature of the relationships caused by the legacy. It compares the legacy with other special testamentary dispositions. The article compares certain solutions of Ukrainian succession law with the legal rules of some other countries.

Stavljanje zaveštanja van snage u austrijskom i srpskom pravu

The proceeding for declaring a will (testament) ineffective on the basis of facts presuming incompliance with the previously expressed last will of the testator, which is prescribed in several contemporary legislations, is distinct from the revocation of a testament as a strictly personal act by which the testator explicitly or tacitly expresses or manifests animus revocandi. The subject matter of this paper is the analysis of legal solutions regulating cases when the last will can be revoked in Austrian law (in case of cessation of partnership or kinship relations after making a last will and exclusion of the only child from the will due to the testator's misconception) and in Serbian law (in case of a substantial change of circumstances which were the testator's decisive motive to make the bequest of certain content at the time of making the will). After examining the facts which are the basis for the presumption of incompliance with the testator's last will and considering other conditions as prerequisites for the application of this institute, as well as their comparison, the author concludes that the legislator's intervention into the freedom of testation could be justified only if it is crucial for exercising this freedom. In other cases, such an intervention bears the risk of imposing additional restrictions, including the interference into testamentary freedom.

Testamentary Freedom and its Bounds in an International Succession Case

This article presents the legal steps that should be made in an intercountry succession case dealing with testamentary succession – first of all, which court is competent to value the will; second, according to which law it should be done. The determination of applicable law is the crucial question inevaluating the will of de cujus – how much the individual was free to dispose their possession. The best way to reveal testamentary freedom in different countries is to overlook its restrictions, such as forced heirship. In the article, there are presented four systems of succession law differently restricting testamentary freedom.

Secret trusts and testamentary freedom

Abstract Secret trusts are a mystery because no theory perfectly explains why the court enforces them when they do not comply with the statutory formalities of wills. This article argues that secret trusts are inter vivos express trusts. If secret trusts fulfil their formalities, the courts will enforce them because they reflect the testator’s intentions of disposing his/her properties at death, sharing the same policy considerations of the Wills Act 1837. This article illustrates how equity facilitates the validity of secret trusts, whilst also limiting its scope to give the courts guidance on when to enforce them to preserve testamentary freedom.

Parens Patriae and the Disinherited Child

Most countries have safeguards in place to protect children from disinheritance. The United States is not one of them. Since its founding, America has clung tightly to the ideal of testamentary freedom, refusing to erect any barriers to a testator’s ability to disinherit his or her children—regardless of the child’s age or financial needs. Over the years, however, disinheritance has become more common given the evolving American family, specifically the increased incidences of divorce, remarriage, and cohabitation. Critics of the American approach have offered up solutions largely based on the two models currently employed by other countries: 1) the forced heirship approach, in which all children are entitled to a set percentage of their parent’s estate; and 2) family maintenance statutes, which provide judges with the discretionary authority to override a testator’s wishes and instead award some portion of the estate to the testator’s surviving family members. This Article takes a different approach and looks at the issue of disinheritance through a new lens: the doctrine of parens patriae. Just as this doctrine limits the decision-making autonomy of living parents vis-a-vis their children, this Article argues that it should likewise limit the dead hand control of deceased parents. Focusing on minor children, adult children who remain dependent as a result of disability, and adult children who are survivors of parental abuse, it is the contention of this Article that testamentary freedom must sometimes yield to the state’s inherent parens patriae authority to protect children from harm. Specifically, this Article proposes that courts should refuse to enforce testamentary schemes that disinherit those children if that disinheritance would constitute abuse or neglect. Such an approach is not only mandated by the doctrine of parens patriae but, in contrast to the approaches other countries have adopted, is more deferential to testamentary freedom. The limitations it does impose represent a relatively modest curtailment of the rights testators currently possess and, at the same time, are consistent with existing exceptions to testamentary freedom, most notably those in place to protect spouses and creditors as well as those that prohibit the enforcement of testamentary provisions that violate public policy.

Ograničenja svojinske i zaveštajne slobode

Ograničenja svojinske i zaveštajne slobode