Proceedings for declaring a will ineffective in Austrian and Serbian legislation

Abstract

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.

Keywords

• last will (testament)
• freedom of testation
• declaring a will ineffective
• revocation of testament
• testator's presumed will