Protection of the Testator’s Will or the Necessity of Stabilization of Legal Relations? On the Constitutionality of the Legal Regulation of Defects of the Will Against the Background of Article 945 § 2 of the Civil Code)

Abstract

The inheritance law is an important area of clash of various values which justify the adopted legal regulations. A particular example of this problem is drawing up a will under the influence of defects in a declaration of will, aimed at, on the one hand, ensuring the protection of the testator’s last will, and, on the other, to limit the possibility of invoking the objection of defectiveness of a will after the preclusive periods provided for in Art. 945 § 2 of the Civil Code (aimed at ensuring an appropriate level of legal security, including in particular the need to stabilize legal relations arising after the death of the testator). At the same time, the adopted legal regulation may, however, constitute a source of legal consequences unacceptable from the point of view of the social sense of justice. In a special situation, due to the unequivocal exclusion of the possibility of challenging a defective will after preclusive periods, it is possible to determine the fate of the inherited estate on a basis of the will that does not reflect the actual and free will of the testator. The author aims at resolving the conflict of competing values constituting the justification of the adopted legal regulations, which requires reference to the axiological assumptions of the constitutional right of inheritance.