By Order of the Supreme Court, a new interpretative case was opened under No. 2 of 2023 for the adoption of an interpretative decision on the issue of whether a testament would be null and void if made because of care taken and with a view to future care to be taken for the testator, and it is possible in such hypotheses to accept that the only motive for making the testament is contrary to the law, as it violates the principle of gratuitous testament.
1 The essence of the testament/will
In essence, a testament is an unilateral contract through which the testator expresses his will as to how he will dispose of his property – all or part of it – after his death. One of the most basic characteristics of a will is that it is a gratuitous act. This means that the testator disposes of his property in a certain way, guided by the main motive that they will give something to someone and that they will not receive a benefit for themselves.
2 Nullity of testamentary disposition
Due to the fact that the testament is an unilateral deal, to which the general rules of bilateral deals – contracts – apply accordingly, the testament can be invalid both due to the general rules of nullity of contracts and due to the special rules of the Inheritance Act, concerning specific hypotheses of nullity of the will.
The specific hypothesis of invalidity of a will under the order of Art. 42, letter “c” of the Inheritance Act, which will be affected in the future interpretive decision, determines that when the testamentary disposition or the motive expressed in the will, for which the sole disposition was made, are contrary to the law, public order and the good morals, then this testamentary disposition is null and void.
As we have already indicated above, the will must be a gratuitous act. This is how we get to the questions that will be decided by the Supreme Court in the interpretation case – would a testament that was made by the testator be null and void because someone took care of them or will take care of them and is this interpreted as a violation of the principle of gratuitousness of the testament, because the motive for the testator to make a will would be to receive or have received care in return.
Some judges accept that when the testament, along with a motive of gratitude for good care given to the testator, also expresses an expectation that this care will continue in the future, this does not mean that the will has a remunerative nature and therefore does not contradicts the law. Others accept that the testator’s expectations for future remunerative performance (taking care of the future, after the will is drawn up), leads to the nullity of the will, since the presence of such a motive contradicts its gratuitous nature.
We will follow with interest what the court’s resolution will be and how it will unify these conflicting interpretations. Until then, however, we will offer you a brief analysis of the issues of the interpretative case, taking into account the currently existing legal theory and case law.
3 The existing legal theory and case law
According to the legal theory, in order to be able to speak about the invalidity of a testament based on a motive that contradicts the law, first of all, this motive must be explicitly written in the content of the will and it must be the only one for which the will was drawn up. Thus, in case this motive is against the law, the will would be void.
It should be taken into account that the will of the testator can be formed not only by one, but by several motives. In such cases, the existing jurisprudence concludes that the will is valid even if one of all the motives is lawful.
At the current, the case law clearly distinguishes the “gratitude motive” – if the testator was looked after by one person and subsequently decided to make a testament for a property to that person, from the motive for the future care and support of the testator, assuming that the first motive does not contradict the law and good morals, but the second one contradicts.
The motives of the testator can be very different: to give thanks, to reward, to encourage, to show generosity, to provide for the needy, etc. In each individual case, the motive of the will reflects the moral and material needs of the testator. The question is whether the gratuitous character is violated if the testament is remunerative and whether the obligation to look after the testator until the end of their life excludes the gratitude motive, because it can be interpreted as a will of the testator to benefit himself with cares. Reasonably, some judges consider that it is possible a testament with the motive of care until the end of life, to cover up a contract for the transfer of property against an obligation of maintenance and care.
Perhaps, in its decision, the Supreme Court will also consider the question of whether the will was drawn up for a single motive or for other motives too. Often, a will may be dependent on several motives, which together predetermine the will of the testator, and because Art. 42, letter “c” of the Inheritance Act provides for nullity of the testamentary disposition when it or the sole reason for which it was made is contrary to the law, public order and good morals, it should logically be taken into account whether the will was drawn up due to only one motive, which is contrary to law, morality or public order. If several motives are expressed in the testament, according to the jurisprudence now existing, it is sufficient that one of them conforms to law and morality to give effect to the testament.
