Testamentary Succession Research Articles

CONFIRMATION OF INHERITANCE ACQUISITION IN THE PRACTICE OF POLISH COURTS – SELECTED ISSUES

Amendment to the Civil Code rules on succession, introduced on 2 April 2009, extended the range of statutory heirs by more distant relatives than lineal parents and collateral siblings’ descendants, by including stepchildren within the range of statutory heirs. This article is an attempt of the author – academic lecturer and, at the same time, practising advocate – to reflect on the practical consequences of that legislative reform. In particular, the problem arose as to how the extension of the range of statutory heirs influences the efficiency and duration of court proceedings in matters for the confirmation of inheritance acquisition. The article presents the most crucial procedural problems, often following from inconsistent judicial practice, which lead to the protraction of court proceedings, both when we have to do with intestate and testamentary succession. Another question depicted is the causes of delivering two or more decisions confirming the acquisition of inheritance from the same deceased person and methods of eliminating such defective rulings from legal practice. The presented problems should provide a stimulus for necessary legislative amendments in this area.

VI. Freedom of Testation in the Revolutionary and Napoleonic Legislation

Summary Contrary to what one could have deduced from art. 2 and 17 of the Déclaration des droits de l’homme et du citoyen, where property had been elevated as a natural right, imprescriptible, inviolable, and sacred, and art. 537 and 544 of the Code civil, where the owners had been given the right to use in the most absolute way and dispose freely of their property, neither the Revolutionary nor the Napoleonic lawmakers thought of the right of disposing freely of one’s property upon death as self-evident. Although there had been a long tradition of testamentary succession in the South of France, the right to dispose freely of one’s properties by testament led to tensions as to its articulation with the pro-intestate customs of the Northern provinces – in 1789–1804 French private law(s) had indeed not yet been unified and the unification process had given rise to several rearguard arguments in favour of local idiosyncrasies –, but most importantly, it led to tensions as to its articulation with the institution of family, one of the pillars, along with property, of the new social order that had emerged from the ruins of the Ancien Régime: the bourgeois society.

Теоретико-правовые аспекты развития института наследования по завещанию в Российской империи

Introduction: the importance of the institution of testamentary succession is difficult to overestimate. This is due to the freedom to dispose of one’s property in case of death. However, such an opportunity and such a right were not always there. The institution of testamentary succession in Russia has passed a difficult evolutionary path. At the same time, a substantial body of research on testamentary succession in Russia is limited mainly to one branch – civil law. Undoubtedly, it is important to consider the institution of testamentary succession in Russia from different sides, including in the historical and legal aspect. The purpose of the paper is to conduct a temporal analysis of the rules on testamentary succession in the Russian Empire. The purpose of the paper is also to conduct a retrospective analysis of one of the stages of great importance in the history of the formation of the institution of testamentary succession in Russia. And, in particular, the purpose of the paper is to study the features of the Code of Laws of the Russian Empire. Methods: the methodological framework for the study is the main general and special methods of scientific research. Results: as a result of the conducted research, it is found that the systematization of the legislation in the form of the publication of the Code of Laws of the Russian Empire has significantly influenced the development of testamentary legal relations. Conclusions: monitoring the history of the formation and development of the rules on testament is of great importance, and especially within the framework of highlighting a specific period during which such changes took place.

CURRENT TRENDS IN TESTAMENTARY SUCCESSION

In this article some current trends in testamentary succession are considered in order to establish a practice-based perspective re the rules of testamentary succession. The research was undertaken by means of the distribution of questionnaires to practitioners specialising in wills, trusts and deceased estates. The data received are hereby described and analysed.

Inheritance in the occupied territories and in the area of antiterrorism operation: the experience of Ukraine

The authors of this paper have covered the issues of the features of inheritance in the anti-terrorist operation zone and the occupied territories. The innovations that came into force in 2018 were taken into account. It is specified that the occupied territories in the Donetsk and Luhansk regions are recognized as parts of the territory of Ukraine, on which the armed formations of the Russian Federation and the occupation administration of the Russian Federation have established and exercise general control. Within the temporarily occupied territories, there is a special procedure for ensuring the rights and freedoms of the civilian population, determined by the legislation of Ukraine. Therefore, the procedure for registering inheritance is unchanged throughout Ukraine. The authors analyzed information on the procedure for obtaining inheritance under the law, by testament, and under an inheritance contract. Attention is focused on the fact that inheritance is a derivative way of the emergence of property rights, and universal legal succession – the transfer of the entire scope of rights, obligations, and items of property from the deceased to the heirs. Besides, timely and accurate fulfillment of their obligations allows formalizing the inheritance in time following the provisions of laws. Testamentary succession occurs if a deceased person drew up a testament before death, and the testament is valid. In its absence, inheritance occurs under the law. Hereditary succession takes place in the following cases: absence of the testament; invalidation of the testament; death of the heirs indicated in the testament before the opening of inheritance or their refusal to accept inheritance; the testator canceled a previously drawn up testament and did not leave a new one; the testament is judicially declared invalid; if the testament does not cover all the property belonging to the testator.

Managing Crises by Way of Ritualization and Exception in Roman Testamentary Succession Law

In principle, a Roman citizen could make a will only when observing a set of strictly ritualized testamentary formalities. However, in times of crises, sticking to time consuming and labor intensive rituals entails high transaction costs, while at the same time the threats experienced as a consequence of the crisis at hand increase the individual need to stipulate one’s last will. In this paper, it will be argued that throughout the centuries, from archaic times to late antiquity, Roman testamentary succession law looked for a compromise between ritualization and exception, thus managing crises in an effective way.

EXTRAORDINARY APPEAL 878.694 / MG: THE JUDICIAL PRECEDENT IN THE LEGITIMATE SUCCESSION OF THE COMPANION

The presente article consists on a study developed with the objective of analyzing the succession of the partner and verifying if that Extraordinary Appeal 878.694 / MG fully equated the regime of succession of marriage and stable union. The Supreme Federal Court in the judgment of the referred appeal determined, not unanimously, the unconstitutionality of article 1790 of the Civil Code that regulates the right of succession of the partner and established the application of article 1829 of the Civil Code in its place, that originally only regulated marriage. This work defined the succession of the partner in the legitimate succession by law and in the Extraordinary Appeal, analyzing legitimate, testamentary succession, litigious and friendly sharing, the similarities and differences of articles 1790 and 1829 of the Civil Code. It will be demonstrated that the Supreme Court's decision did not pacify all issues related to the partner's right of succession.

Recurso extraordinário 878.694/MG: O procedente judicial na sucessão legitima do companheiro

The presente article consists on a study developed with the objective of analyzing thesuccessionofthepartnerandverifyingifthatExtraordinaryAppeal878.694/MGfullyequatedtheregimeofsuccessionofmarriageandstableunion.TheSupremeFederalCourtinthejudgmentofthereferredappealdetermined,notunanimously,theunconstitutionalityofarticle1790oftheCivilCodethatregulatestherightofsuccessionof the partner and established the application of article 1829 of the Civil Code in itsplace, that originally only regulated marriage. This work defined the succession of thepartnerinthelegitimatesuccessionbylawandintheExtraordinaryAppeal,analyzinglegitimate, testamentary succession, litigious and friendly sharing, the similarities anddifferencesofarticles1790and1829oftheCivilCode.Itwillbedemonstratedthatthe Supreme Court's decision did not pacify all issues related to the partner's right ofsuccession

Poređenje pravnog položaja žena u braku i nasleđivanju u Srpskom građanskom zakoniku iz 1844. i Građanskom zakoniku Kraljevine Italije iz 1865.

This paper deals with a comparative analysis of the legal position of women in the Serbian (1844, hereinafter SCC) and Italian (1865, hereinafter ICC) Civil Codes, considering the norms that regulate the position of women in marriage and those regarding inheritance. Confronting these two codes is relevant for various reasons. Firstly, it has not been done before in Serbian jurisprudence. Secondly, although based on different models (the Italian on the French Code, the Serbian on the Austrian Code, hereinafter ACC), each of them differs in some aspects from their model in the law of marriage and inheritance. Thirdly, it’s important from a historical aspect, because the Italian Kingdom had just been formed and the Serbians had relieved themselves of the centuries-long Turkish government, so there’s a similarity in the process of writing the codes. Although the writing styles of the codes are unalike, there are certain similarities in the provisions on marriage, the relationship between spouses, the relationship between spouses and children, and in terms of testamentary succession. For example, both codes give more rights to the husband (being the „head of the family”), and while the wife can write a will, she is not allowed to be a legal witness to another person’s will. There are several differences between the two codes, but most of them are negligible. For instance, both codes prescribe a parent’s permission for marriage, while the marriageable age that doesn’t require consent differs (i the ICC 25 years old for men and 21 for women, whereas in Serbia it’s 18 years old for both men and women). However, a few differences are relevant. The biggest one is the way in which intestate succession is regulated: the right to inherit is recognized to legitimate children regardless of gender in the Italian code, while in the Serbian code women are excluded from inheritance, which is one of the major differences between the SCC and ACC. In fact, when writing the code, Hadžić didn’t want this provision incorporated in the law, but it was added nevertheless. The second biggest difference between the ICC and the SCC consists in the fact that adultery is considered a reason for legal separation (and not divorce, because divorce was not allowed) in the ICC only if it is committed by the wife, while in the Serbian one the sex of the adulterer is not specified and can lead to divorce even if it’s done by the husband. Finally, the Serbian legislator also regulates the position of women in the „zadruga” (a type of joint family), in which women cannot be members, nor can they inherit, while that institute is not prescribed in the Italian one.

COMPARATIVE ANALYSIS OF TESTAMENTARY SUCCESSION IN THE LEGISLATION OF THE MEMBER STATES OF THE EUROPEAN UNION

Testamentary succession occupies an important place in the field of Succession law in the civil legislation of the European Union. According to the testamentary succession physical person can give by a will his (her) property or its part to one or more persons among his (her) heirs or to one or more persons who are not among his (her) heirs. The article reflects the concept, sequence, legal basis and place in judicial practice of testamentary succession. Key words: testamentary succession, succession law, civil code, legislation, comparative analysis

GENDER PREFERENCE IN CUSTOMARY INHERITANCE LAWS OF THE KHASI TRIBE IN INDIA- MYTH OR FACT?

Justice is premised on the idea of equality before law, equal protection of law as well as equality of opportunity in social, economic and political spheres. Any form of discrimination on any ground is antithesis to the concept of equality and justice. The root cause of women’s subjugation is her economic dependence and as long as the same is not remedied,, attaining equality of the sexes is a utopian thought. A variety of different laws related to intestate and testamentary succession in India are in vogue, which owe their variety to their origin, principles and the body of substantive law itself. Broadly speaking, people professing different religions live in India who has their distinct personal laws. Besides, the Scheduled Tribes in India are also governed by their distinct customary uncodified laws of inheritance and enjoy constitutional protection for the same. There are several tribes in north-east India who are governed by their own customary laws in all matters including that related to inheritance as well and a preliminary study of the same evidences the fact that they are not egalitarian in nature and are in fact bereft of the notion of providing equal rights to women. However, the customary inheritance laws of Khasis tend to create a perception that they tend to prefer females over males owing largely to the matrilineal nature of the Khasi tribe Although a cursory glance seems to validate the said notion, a more in-depth look at the laws shatters the myth. In the light of the aforestated background, the paper aims at making an analytical study of the inheritance rights of women under the Khasi customary laws and gauge the effects of the existence of matriliny in case of Khasis to check the veracity of the claim of the preference for the female gender in matters of inheritance.

A conceptual view of the act of testation to elucidate a testator’s intention in the South African law of succession: a proposed “act-based model” as opposed to the traditional “requirements model” (part 2)

By definition, the law of succession governs the devolution of assets. The recognition of testamentary succession enables a testator to express his/her will (intention) in terms of the disposition of assets in a last will and testament. The act of testation (or testamentary act) may be broadly defined as the practical manifestation of testator’s intention, where the latter is primarily concerned with the disposition of assets. Beinart describes the act of testation and its requirements as follows: “It is clear law that a will, before it can be given effect to as such, must be a conscious, serious and deliberate statement of intention, and therefore a mere indication of a testator’s last wishes, or a statement for future use, or a mere note, or instructions for execution of the will is not an act of testation. There must be a serious and complete and final act of testation made animo testandi, of such a nature as to show [the] testator intended his declaration to take effect as his will. Unless the declaration is of such a nature there is no act of testation at all.

Sucesión de nacional extranjero residente en territorio de derecho foral: las cuestiones omitidas. Sentencia de la AP de Girona (Sección 2) núm. 367/2019 de 4 de octubre

En el caso de una sucesión testamentaria de un nacional británico, un tribunal tiene que desplegar una actividad dirigida básicamente a la elucidación de tres cuestiones: Con independencia de la residencia habitual del causante; ¿dónde tuvo su último domicilio? ¿Tienen las disposiciones testa­mentarias valor de elección de ley? Admitido el reenvío, ¿se puede aplicar sin más la normativa de la Comunidad Autónoma, en base a un criterio puramente territorial? En el caso analizado, no sometido al reglamento 650/2012, la Audiencia Provincial prescinde de estos análisis. Si el reglamento hubiera sido aplicable, el resultado podría haber sido muy distinto

Analysis on the Legal Issues of Common Wills

《继承法》中没有共同遗嘱相关的法律条文，有关共同遗嘱的唯一规定就是2000年司法部颁布的《遗嘱公证细则》第15条。根据第15条的规定，公证机关不支持当事人之间设立共同遗嘱，但是对坚持设立的当事人要求明确约定遗嘱的生效，变更和撤销的条件。由于共同遗嘱的实际存在和法律缺位的矛盾，人民法院的审判陷入无法可依的困境，出现了同案不同判的审判结果。 本文通过法律审判文书网公布的有关共同遗嘱案件的近几年统计和两个具有代表性案件的分析，总结出我国设立共同遗嘱制度的必要性和可行性，并在夫妻共同遗嘱的效力、生效时间的认定、变更和撤销的问题上进行了较为详细的分析。通过限制共同遗嘱的主体和财产范围，有条件地肯定共同遗嘱的效力；共同立遗嘱的双方均死亡之后，才发生遗产分割的效力；一方死亡后当事人之间没有约定的前提下，生存一方只能变更和撤销属于个人财产范围内的遗嘱内容等规定是构建共同遗嘱制度时，必须参考的重要事项。China s Law of Succession promulgated and implemented in 1985, based on China s social reality, stipulates its testamentary succession system. However, there is no legal provision related to the common will in the “Law of Succession”. The only provision concerning the common will is Article 15 of the “Detailed Regulation on the notarization of the will” promulgated by the Ministry of Justice in 2000. According to the provisions of Article 15, the notary office does not support the establishment of a common will between the parties, but requires the parties who insist on the establishment to clearly stipulate the conditions for go into effect, change and withdrawal of the will. Due to the contradiction between the actual existence of the common will and the lack of law, the trial of the people s court fell into a difficult situation that could not be relied upon, and the trial results of different judgments in the same case appeared. Through the statistics of recent cases of common wills published by the China Judgements Online and analysis two representative cases, this paper summarizes the necessity and feasibility of establishing a common will system in China and carried out a more detailed analysis on the effect of the husband and wife s common will, identification of the effective time and the change and withdrawal of the common will. The following provisions are important mattes that must be considered when constructing a common will system: Conditionally affirming the effect of the common will by limiting the scope of the subject and property of the common will; The effect of the division of the estate occurs only after the death of both parties to the common will; Under the premise that there is no agreement between the parties after the death of one party, the surviving party can only change and withdrawal the content of the will belonging to the personal property, etc.

Hugo Grotius and Samuel Pufendorf on Last Wills and Testaments

Hugo Grotius believed that last wills belonged to the Law of Nature, whereas Samuel Pufendorf argued that testamentary succession was a mere creation of human laws. I argue that Pufendorf’s rejection of the Natural Law origins for wills lacks internal consistency in both his Natural Law system and his proprietary rights theory. Pufendorf even contradicts his own previous claim stating wills are recognised by the Law of Nature as useful to the promotion of social peace. Grotius’s analysis of testaments, on the other hand, brief though it may be, is entirely consistent with his previous arguments: that the Law of Nature can attach itself to human creation; and that a human creation such as testamentary succession belongs to Natural Law when derived from, or when it agrees with, human reason and sociability.

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.

KILKA UWAG O BADANIACH NAD ROMANIZACJĄ STATUTÓW LITEWSKICH

SOME REMARKS ON THE STUDY OF THE ROMANIZATION OF LITHUANIAN STATUTESSummary The article is dedicated to the issues connected with the reception of Roman Law in the Lithuanian statutes of 1529, 1566, and 1588. After an analysis of the existing scholarly accomplishments in the field, one cannot but conclude that the study of the influence of the Roman Law on Lithuanian codifications has hardly been started yet. Despite the fairly long tradition of research in this field, so far only selected elements of the first and second statutes have been analyzed in order to identify Roman constituents. The research carried out in 1930s by Raphael Taubenschlag, Franciszek Bossowski, and Karol Koranyi demonstrated which Roman Law noticeably influenced the statutory regulations pertaining to family law, law of property, law of succession, criminal and procedural law. Their observations partly confirmed the findings previously made in the nineteenth century by Aleksander Mickiewicz, Franciszek Morze, and Ignacy Daniłowicz. At the same time, nothing is still known about the scope of Romanization in the third Lithuanian statute or about the transformations which Roman elements underwent in each of the statutes. Without further study of the subject, one cannot assess the role of Roman law in the Commonwealth (Rzeczpospolita).It seems that the most fertile ground for identification of Roman elements in the third Lithuanian statute is tutorship and succession law, especially testamentary succession. Some interesting and original observations could be made on the basis of a more thorough comparative analysis of the pertinent Roman and Lithuanian regulations.

GENERAL PRINCIPLES OF INHERITANCE LAW IN THE ROMANIAN LAW AND THE MUSLIM LAW

This article discusses the general principles of legal regulation of inheritance of the Civil code in force and their comparison with those prevailing in Muslim law. The Muslim law of inheritance ab intestat -the only “legal one” because really the Muslim law is not recognized in “testamentary succession”- it produces awe to the one who discovers. Its technique, but mostly the principles with which they are at the base and the spirit that it animates (it might not be without regard for the sacred), constitute difficulties for lawyer largely influenced by French law. More than in any other system of law, we need to look in history, not so much due to tracking descendants, about which we know quite a bit, as well as with the purpose to avoid countermeasures meanings in terms of the spirit that animates this right.

To the question about the features of the inherited legal relationships

Problem Setting . In the article the features of the inherited legal relationships are analysed. Their separate elements are investigational, in particular object and maintenance. Analysis of the recent researches and publications . An extended abstract of a paper on the subject of succession in accordiance with civil legislation. Succession is the passing of rights and obligations (inheritance) from a natural person who died (the testator) to other persons (the heirs). Inherited legal relationships are juridical forms of succession as the passing of rights and obligations. Paper objective. Inheritance shall include all rights and obligations of the testator as of the moment of opening of inheritance that did not terminate in consequence of the testator's death. Succession shall be exercised based on a will (testamentary succession) or according to law (legal succession). All types of succession are represented legal relationships. Paper main body . It is grounded in the article, that the inherited relations can exist only as relations legal. Structurally they are engulf subjects, their right and duties and inheritance as object. Objects and maintenance of the inherited legal relationship are examined in the article in co-operation of rights and duties and real conduct of participants. Conclusions . Legal nature of succession of rights as rights on acceptance of inheritance is ambiguous. An author binds rights for the participants of legal relationship to taking of inheritance, refuse over acceptance of inheritance consequences of expiry of the term for inheritance acceptance. As by a written consent of the heirs who accepted the inheritance, the heir who let the time limit elapse may apply for the acceptance of inheritance to the notary office at the place of inheritance opening.

Charakter prawny testamentu na rzecz kościołów lub dzieł pobożnych

The purpose of this article is to show the nature and legal requirements of the will for the benefit of churches or pious works. The conclusion reached in these considerations is that post-classical roman law, although it did not recognize the legal personality of the Catholic Church, guaranteed the particular ecclesial communities and pious works run by the Church wide access to material goods, by way of testamentary universal succession, as well as testamentary succession under particular title. This was made possible through the recognition of ecclesial communities and charities as legal entities having testamenti factio passiva by Roman law. Wills benefiting churches or pious works necessitated, for their validity, abiding by all of the formal requirements for making a declaration of intent, in particular the presence of seven witnesses, regardless of whether the declaration was oral or written. As such, wills benefitting churches or pious works were not considered under Roman law to be privileged in form. It was Pope Alexander III who first challenged the requirement of the presence of seven witnesses. Since then, canon law treated wills for the benefit of churches or pious works as a privileged kind of will, whose validity required the presence of only two witnesses. Thus, this type of will was an institution present in both legal orders, but only received its privileged nature in medieval canon law.