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THE IMPACT OF THE CONTRACT OF INHERITANCE ON THE PRINCIPLE OF FREEDOM OF TESTATION
Abstract
Numerous advantages of contractual devices in the field of inheritance law, as well as the trends of development of the succession law, imposed the need to devote special attention to the impact of contract of inheritance on the principle of freedom of testation, as the reflexion of the principle of autonomy of will in the inheritance law. The comparison of various legal systems showed great divergences regarding contracts of inheritance: legal regulations varied from its wide acceptance (Germany, Switzerland), through its exceptional and partial permission (Austria), to its explicit ban (in numerous states, like Italy, Greece, Spain, Croatia, Slovenia). Since it cannot be renounced unilaterally, one of the main arguments for its prohibition is its incompatibility with the principle of freedom of testation. However, the principle of freedom of testation is a value respected and protected by all the legislators imposing the need of comparison of its content, scope and interpretation. The comparative analysis revealed possible solutions for indicated incompatibility between the contract of inheritance and the principle of freedom of testation. The author highlighted recent reforms of succession laws (in Italy and France) indicating a trend towards †contractualisation' of succession law, encouraged by the legal scholars and the EU Commission. Introduced devices are variations of pacta de non succedendo. Review of their legal effects divulged that they, by definition, enhanced testator's testamentary freedom, giving testator and her/his heirs greater autonomy in succession planning. Finally, the author raised the question whether the actual interpretation of the principle of the freedom of testation (in the legal systems with the ban of the contract of inheritance) represented an excessive restriction of autonomy of will and therefore prevented adequate regulation of succession planning. The author gave comparative analysis and offered possible solutions that could be useful in future re-evaluation of the prohibition of the contracts of inheritance and its compatibility with the principle of freedom of testation.
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