Full text of the paper:
Proceedings of the Faculty of Law, Novi Sad
2025, vol. LIX no. 1, p. 57-84
working language: Serbian
Review paper
347.67(497.11) 340.5
doi:10.5937/zrpfns59-57560
Author:
Jelena Vidić
University of Novi Sad
Faculty of Law in Novi Sad
j.vidic@pf.uns.ac.rs
ORCID ID: 0000-0001-7471-2981
Milica Kovačević
University of Novi Sad
Faculty of Law in Novi Sad
m.kovacevic@pf.uns.ac.rs
ORCID ID: 0000-0001-7310-743X
Summary:
In order to be valid, a will as a legal transaction mortis causa must meet certain conditions that are given in each specific legal order. In Serbian law, as a matter of principle, legal effect can only be produced by a will made by a person with testamentary capacity, freely expressing his will, the content of which is in accordance with mandatory regulations and rules of morality, and which was made in one of the forms prescribed by law. The lack of any of the mentioned elements makes the bequest invalid.
The legal order of each state evaluates the reasons for the invalidity of a will and accordingly classifies them as null and voidable bequests. Nullity as a type of civil sanction aims to strengthen legal certainty, protecting the general interest and security of legal transactions. Demolition, on the other hand, as a sanction of weaker legal effect, first of all affects the private interests of interested parties, and therefore its scope is narrower. The Law on Inheritance of Serbia clearly and precisely separates null and void bequests in terms of the causes that lead to them, the circle of persons who can refer to them, the deadlines in which it is possible to highlight their existence, as well as the legal consequences of annulment. Although, in principle, they are within the framework of the classic reasons for the invalidity of legal affairs contained in the Law on Obligations, some of the reasons for nullity and voidability, as well as certain procedural aspects of the invalidity of a will, taking into account its specificities as a legal transaction mortis causa, are adapted to the matter of testamentary inheritance by inheritance law regulations.
The paper examines precisely the ways in which the previously mentioned issues are regulated in Serbian, but also in other individual modern legal systems, such as German, Austrian, French and Russian law, whereby the focus of the author’s attention is on legal solutions that are accepted in domestic law. Based on their observations, while simultaneously consulting the positions of current legal doctrine and judicial practice, as well as taking into account certain good solutions observed in comparative law, the authors present appropriate proposals that could contribute to the improvement of legislation dedicated to the reasons for the invalidity of wills in the legislation of Serbia de lege ferenda.
Keywords:
nullity of will, revocability of will, public order, testamentary capacity, falsification of will, defects of will, form of will.