TESTAMENTUL – ACT JURIDIC COMPLEX
Author(s): Ioana Nicolae, Diana Ionaș
THE TESTAMENT – A COMPLEX JURIDICAL ACT
Subject(s): Law, Constitution, Jurisprudence
Published by: Studia Universitatis Babes-Bolyai
Keywords: will; legal nature; legal characters; proof; interpretation.
Summary/Abstract: The testament – a complex juridical act. When a person dies, its patrimony is passed on to his heirs, according to the rules of legal succession or those of testamentary succession. In Romanian civil law, the ab intestat succession acts as common regime; however, it can be completely or partly removed by the enactment of a will. Coming from the Latin word testis (witness), the testament is regulated in the new Civil Code along with donation, as a unilateral, personal and revocable act by which a person, called the testator, disposes of his goods in one of the legally regulated forms, for the time when he will no longer be alive. By taking into account the previous criticisms, the Romanian lawmaker has adequately regulated the legate and the will in a distinctive manner, by correctly appreciating that the testament is merely the final wish of the testator which can consist of patrimonial provisions, namely legates. This is not mandatory, as the will can consist of non patrimonial provisions, without calling into question his character of act of final will. The auhors expressed a series of opinions regarding the legal nature of the will. Whether it is characterized as a legal act or as a legal form or legal pattern, the will must be seen as a form of expression of the final act of will of the testator which consists of, along with legates, a series of other legal acts of different legal nature, which represent the judicial „support” of the legate and of the other provisions of the will. As it is a legal act, it must fulfill the general conditions of the legal act, as well as the formal conditions required by law. The will is a unilateral legal act; it is personal, revocable, and solemn, with a death clause. If, on the outside, it must have an ad validitatem form, the law makes no provisions regarding its content. In case there is any doubt regarding the testator’s intent, jurisprudence tends to give meaning to the real will of the testator, as opposed to the declared will and the literal sense of the terms, thus reaffirming the principle of real will, as regulated in liberal matters.
- Issue Year: 59/2014
- Issue No: 4
- Page Range: 196-212
- Page Count: 17
- Language: Romanian