Povreda i zaštita prava na nužni deo

In the countries of the European-continental legal system, the legal institute of compulsory portion is substantively the most effective and direct limitation of the testator’s freedom of testamentary disposition and, in a broader context, the decedent’s freedom of gratuitous distribution of property rights. This complex legal institute clearly reflects the familyoriented dimension of succession. The imperative nature of legal rules regulating the area of compulsory succession ensures the protection of property rights and interests of the decedent’s close family members from excessive gratuitous dispositions mortis causa and/or inter vivos, by which they have been unjustly evaded from succession. Compulsory heirs are guaranteed the right to request their compulsory portion of the succession estate, a predetermined reserved amount explicitly prescribed by the law, irrespective of the decedent’s express will on the distribution of the succession assets. The major issue in compulsory succession is the violation of the right to a compulsory portion and the mechanisms for the protection of this right. The norms regulating this issue are aimed at establishing whether the right to a compulsory portion has been infringed or not, to whom and in what amount, and ensuring its protection in court proceedings. In order to discuss these issues comprehensively, it is essential to examine the basic issues pertaining to the institute of compulsory portion, in an attempt to come to a definition which will include the constituent elements of this concept. Then, we explore the historical development of this institute and provide arguments justifying its presence in the contemporary legislation. Further on, we observe the overall genesis and developments of this institute over centuries, by reviewing the legislative frameworks of a number of foreign legislations and the Serbian law. In particular, we analyze the current trends in the regulation of forced succession in the contemporary comparative law expressing ideas about the directions for further changes in regulations de lege ferenda in this area of succession relations. Yet, a further analysis of issues concerning the violation of the right to a compulsory portion largely rests on drawing a clear distinction between the concepts of a violation of and a threat to the right to a compulsory portion. It is important because the legal options for the protection of the right to a compulsory portion are significantly different depending on whether there is just a threat of the violation of this right or there is a definite violation of the right to a compulsory portion due to the testator’s excessive gratuitous disposition. In this regard, we paid special attention to the method of calculating the size and value of compulsory portion, to the possibilities of its settlement, calculation of assessed value of the succession estate. Emphasis is placed on the importance of gifts that are calculated in the assessed value of the succession estate, in order to explore whether the norms regulating the method of the compulsory portion settlement, as well as the order among debtors obligated to settle compulsory portion. The dissertation also focuses on examining specific legal instruments for the protection of the threatened and violated right to a compulsory portion, respectively. Depending on the circumstances of each case, there is a wide range of procedural instruments at the disposal of a compulsory heir that may be used for the protection of one’s rights and interests in cases where the compulsory portion is not definitely violated by the testator’s disposition. These instruments include: filing a claim to establish that a will, a donation contract or a lifetime maintenance contract are legally void; filing an objection against an unjustified exclusion from succession (exheredatio nota causa), or an objection against being deprived of the right to a compulsory portion (exheredatio bona mente); filing motions to modify a testamentary disposition or motions to include gifts and legacies into the statutory or compulsory portion, etc.). The use of these instruments is opportune because the compulsory heir is given the opportunity not only to exercise the right to a compulsory portion in an efficient and cost-effective manner but also to obtain the full statutory amount of the entire statutory portion and thus fully protect his succession rights and interests. When the right to a compulsory portion is violated by decedent’s excessive and valid gratuitous dispositions, a compulsory hair is legally entitled to pursue the protection of this right in front of the court of law, and within the explicitly prescribed time limits. The compulsory heir is entitled to demand compulsory portion, but when he does that, the order of the steps and of the debtors from whom he should ask the settlement of compulsory share is pre-determened by the law, except the testator didn’t privilege one or more testamentary acquirers to the extent authorized by the law. The legal ways of protection of the compulsory share in probate proceedings, as wel as in civil proceedings were subject of a separate analysis, although empirical research that we conducted showed that the protection of the right to the compulsory share in the domestic jurisprudence has been realizing only in civil proceedings. On the basis of the analysis of the protection of violated compulsory share in comparative law, as well as of the legal solutions and legal attitudes in our jurisprudence and judicature, the author tried to answer numerous moot, still open questions about the protection of violated compulsory portion and offer solutions in order to provide more efficient and economical protection of interests of the compulsory heirs, but also to protect legal position of the compulsory portion debtors, when that is justified