Publication Date:
2016
abstract:
Notwithstanding the case-law’s view, is the testator free to satisfy the persons entitled by law to the share of his estate by giving them as legacy some properties belonging to his heir’s asset?
The possibility that the share of the testator’s estate reserved by law to certain persons can consist of properties not belonging to the deceased person’s estate is positively accepted in more than one hypothesis; however, inescapable prerequisite of such a possibility is the consensus, or at least the lack of opposition, of the persons entitled by law to the share of the deceased person’s estate.
Nevertheless, the aforementioned prerequisite is not essential in case the testator appoints as heir the persons entitled by law to the share of his estate and at the same time assigns to the preferred heir a legacy made up of a sale agreement (or made up of an exchange agreement), by means of which those appointed heirs have to sell to the preferred person part of the share of the testator’s estate upon payment (or, in case of an exchange agreement, upon transfer of the property rights related to the preferred heir’s properties).
The proposed solution to the submitted question doesn’t seem to be the only one. In fact, the persons entitled by law to the share of the deceased person’s estate don’t have a right over one or more particular testator’s properties; they only have a right over a share of the deceased person’s estate, that can be economically appraised. Hence, the testator can directly distribute his estate and satisfy the persons entitled by law to the share of his estate by assigning them some properties belonging to his preferred heir’s asset (without appointing those persons entitled by law to the share of his estate as heirs and force them to sell a part of the share of the testator’s estate reserved by law to them). In this last case, the entitlement to the balance loses his nature of legacy and is attracted within the boundary of the testate universal succession.
The possibility that the share of the testator’s estate reserved by law to certain persons can consist of properties not belonging to the deceased person’s estate is positively accepted in more than one hypothesis; however, inescapable prerequisite of such a possibility is the consensus, or at least the lack of opposition, of the persons entitled by law to the share of the deceased person’s estate.
Nevertheless, the aforementioned prerequisite is not essential in case the testator appoints as heir the persons entitled by law to the share of his estate and at the same time assigns to the preferred heir a legacy made up of a sale agreement (or made up of an exchange agreement), by means of which those appointed heirs have to sell to the preferred person part of the share of the testator’s estate upon payment (or, in case of an exchange agreement, upon transfer of the property rights related to the preferred heir’s properties).
The proposed solution to the submitted question doesn’t seem to be the only one. In fact, the persons entitled by law to the share of the deceased person’s estate don’t have a right over one or more particular testator’s properties; they only have a right over a share of the deceased person’s estate, that can be economically appraised. Hence, the testator can directly distribute his estate and satisfy the persons entitled by law to the share of his estate by assigning them some properties belonging to his preferred heir’s asset (without appointing those persons entitled by law to the share of his estate as heirs and force them to sell a part of the share of the testator’s estate reserved by law to them). In this last case, the entitlement to the balance loses his nature of legacy and is attracted within the boundary of the testate universal succession.
Iris type:
2.1 Contributo in volume (Capitolo o Saggio)
Keywords:
legittimarî; asse; soddisfazione
List of contributors:
Proto, M
Book title:
SCRITTI IN ONORE DI NICOLA PICARDI