On the Notion of the Competent State Agency as the Unit Authorized to Demend the Fulfillment of Testamentary Burden, if it is in the Public Interest (Art. 985 of the Civil Code)

Abstract

Pursuant to Art. 982 of the Civil Code “the testator, in a will, may impose on a heir or legatee the obligation to carry out a specific action or to refrain from carrying out of specific action without making anyone a creditor (testamentary burden)”. The institution of testamentary burden allows the testators produce such legal effects mortis causa, the achieving of which would not be possible in the way of other testamentary disposals (for instance legacy). This paper relates to testamentary burden (done in the public interest), the fulfillment of which may be demanded – apart from testator and last will executor – also by a competent State agency (Art. 985 of the Civil Code). In the article the notion of the competent State agency was defined. This notion raises interpretation doubts as the principle of the uniform system of state power was given up. Furthermore, the issue of the prosecutor’s right of action to demand the fulfilment of the testamentary burden was discussed. Based on the analysis of the institution of the testamentary burden in German, Swiss and Austrian law, the comments de lege ferenda were formulated, according to which the notion of “a competent State agency” should be replaced with the notion “a competent authority”.