The main objectives of the reform include greater certainty in relation to wills and real estate transactions, greater public availability of information on inheritance status, and additional protection for vulnerable persons.
The Draft Bill Amending and Supplementing the Inheritance Act, published for public consultation, provides for substantial changes to inheritance, property and family law. The proposals also affect the Civil Procedure Code, the Family Code, the Obligations and Contracts Act, the Notaries and Notarial Practice Act, the Ownership Act and the Civil Registration Act.
The main objectives of the reform include greater certainty in relation to wills and real estate transactions, greater public availability of information on inheritance status, and additional protection for vulnerable persons.
1. Greater Certainty in Relation to Wills
The draft bill introduces additional safeguards for the authenticity and traceability of wills. It provides for information on formally announced wills to be entered in the information system of the Notary Chamber, as well as for the creation of a centralised database of notarial and handwritten wills and instruments revoking them. Searches will be permitted only after the opening of the succession.
A significant new development is the procedure for addressing false handwritten wills. Where a will has not been delivered personally by the testator to a notary, a notice will be published on the Notary Chamber’s website following its formal announcement. Persons with a legal interest will have one month to challenge its authenticity. If an objection is raised, the person in whose favour the will is made will have to establish its authenticity in court proceedings.
Some of the proposed changes do indeed contribute to greater certainty in relation to wills, but overall, this part of the draft bill requires reconsideration and further refinement. For example, the identity of the person who deposited the will with the notary for safekeeping should be irrelevant to its authenticity and to the procedure for its formal announcement and implementation.
2. Additional Protection for Vulnerable Persons
The draft bill proposes that testamentary dispositions be null and void where they are made by persons in medical establishments or residential care for older persons in favour of managers, employees or persons related to them. An exception is provided for a specified category of close relatives. A similar prohibition is also proposed in respect of donations made in the same circumstances.
3. Acceptance and Renunciation of Inheritance: Increased Formalities and Publicity
In cases of acceptance or renunciation of inheritance, the application to the district court will have to bear a notary certified signature. The information will also be recorded in the deceased person’s electronic personal registration record.
This would make it easier to establish inheritance status and would reduce the risk of unknown acceptances or renunciations that may affect the other heirs and creditors.
4. Stricter Scrutiny of Real Estate Transactions
The draft bill expands and specifies in greater detail the notary’s duties in transactions involving the disposal of real estate. The proposed measures include:
These changes are aimed at reducing the risk of fraud andtransactions involving defects in the authority to represent.
5. A New Institution: the “Trusted Person”
One of the most significant conceptual changes is the proposal to introduce the Institution of the Trusted Person into the Family Code. A person with legal capacity will be able voluntarily to specify particular acts of disposal of their property for which the consent of a previously designated trusted person will be required in future.
The restriction will have to be specific, notary certified and entered in the relevant registers. A transaction entered into without the required consent of the trusted person will be voidable.
This legal mechanism is intended as a means of voluntary self-protection, including where there is a risk of manipulation or deterioration in health, and as an alternative to the more restrictive measure of placing a person under interdiction. At the same time, the court will be given broader powers to order interim measures in interdiction proceedings, including the appointment of an interim curator to protect the person’s personal and property interests.
6. A New Procedure for Acquiring Property by Prescription
Changes are also proposed to the notarial fact-finding procedure for acquiring real estate by prescription. These include:
Although the aim is to curb abuse, the proposed procedure questions. The additional formalities may cause delays without necessarily resolving the main problems of the current regime. It is alsounclear what the legal consequences of objections raised before the notary willbe, and how attempts made in bad faith to block the procedure will be curtailed.
What’s next?
The draft bill provides for entry into force in stages, with different groups of provisions becoming applicable three or six months after promulgation. However, the provisions are likely to undergo changes before final adoption.
