Zasadnicze rozrządzenia testamentowe

Abstract

If the testator allocates individual property items (rights) to a designated person in the will, which do not exhaust almost the entire estate, this person is, in case of doubt, considered to be the legatee and not the heir (argument a contrario from Article 961 of the Civil Code, moreover, this is in line with the essence of legacy dispositions, which concern individual property rights). Obviously, the above rule does not apply if a different will of the testator is apparent from the interpretation of the will.

If the testator has allocated certain property rights to a certain person which do not, however, exhaust the entire inheritance, and it is clear from an express testamentary provision or from the interpretation of the will that it was the will of the testator that this person should be an heir and not a legatee, the rule of Article 961 of the Civil Code does not apply (this may apply, for example, to an object of significant value when it was the will of the testator that this object should pass to this person upon the opening of the inheritance proceedings). Indeed, Article 961 applies in cases of doubt and must give way to the supreme rule of testamentary interpretation: that it should be interpreted so as to give the fullest possible effect to the will of the testator (Article 948 of the Civil Code).

The essence of a legacy bequest is that the transferee acquires directly the right bequeathed to him. The object of this type of bequest does not have to be only property; it may also consist of other rights included in the inheritance (e.g. limited rights in rem, receivables – heritable, transferable). There is no legal obstacle to its object being an item of property (more broadly, a property right) included in the inheritance.

The subject of a bequest under the Civil Code may be possession. This also applies to a property order (imposing an obligation to transfer possession to a designated person). A bequest against the background of the Civil Code may be made in favour of a sole heir.

A bequest in favour of a third party is permissible (analogy to Article 393 of the Civil Code); this also applies to a further bequest. The third party has a direct claim on the bequeathered party (debtor) for performance, but he or she is not a legatee.

De lege ferenda, the introduction of a legacy bequest should be advocated, especially as the construction of an ordinary bequest is very artificial for most testators. Furthermore, the introduction of such a solution would be in line with the general principle of inter vivos legal transactions (Articles 155, 245, 237, 510, 1052 of the Civil Code). This bequest is also particularly favourable to the legatee, whereas an ordinary bequest is particularly favourable to the creditors of the inheritance. De lege ferenda, the introduction of a legacy bequest should be advocated, leaving, in any case, an ordinary bequest for those situations in which certain legal and substantive effects cannot be achieved by means of a legacy bequest.

The order, although in certain cases it may be non-appealable (Article 985 sentence 1 in fine), is nevertheless a command in the technical and legal sense. Indeed, contestability is not part of the essence of a subjective right. Also outside of the order, there are certain situations in which subjective rights (exceptionally) are non-delegable (e.g. claims flowing from natural obligations), nevertheless they are rights in a technical and legal sense. The power to require compliance with an order is not a subjective right but a purely procedural power. It is therefore not hereditary; consequently, also the construction of legal (inherited) situations does not apply here (these arise against the background of subjective rights, material legal relations).

The testator may not authorise persons other than those indicated in Article 985 of the Civil Code to request the execution of the order. For this enumeration is exhaustive. Nevertheless, such dispositions are to be regarded as the establishment of an executor of the will with his/her function limited to the execution of the order, unless it appears from the interpretation of the will that the testator excludes such an interpretation. The disposition on this point would then be invalid (Article 58 § 1 of the Civil Code).

It is only permissible to appoint an executor of a will in relation to a farm.