Probate proceedings and a previous issue

Abstract

In this paper, the author focuses on the legal solutions in Serbian succession law pertaining to a previous issue that may arise in the course of probate proceedings. The research has been conducted with the aim of providing reasoned answers to the following questions: When is there a dispute on the application of law, and when is there a dispute on facts (factual issues significantly affecting the right to inherit)? How should the legal standard of "the less probable right" be understood? What are the characteristics of probate proceedings that prevent the dispute resolution of the same quality as in civil (litigation) or administrative proceedings? Why is the dispute resolution on decisive facts assigned to another (civil) court or administrative body if the authority in charge of conducting the probate proceedings has resolved very complex previous issues beforehand? Will the civil court judge or the notary public conducting the probate proceedings be competent enough to resolve the dispute in a specific case, bearing in mind their professional qualification and authorities, particularly those of notaries public. The analysis in this paper is based on the dogmatic (legal science) method, legal history method, normative law method, and comparative law method. For the purpose of attaining a higher level of legal certainty and a more consistent observance of the principles of procedural economy and efficiency in establishing the succession law effects of one's death, the author proposes adequate changes and amendments to the non-litigious procedure rules.

Keywords

• probate proceedings
• right to inherit
• previous issues
• dispute on facts
• dispute on the application of law