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1:07 AM
Soft Tech
Life is not always so arranged by models that come to a reserved person entitled in the first place. Sometimes, for example. After the rejection of the inheritance, entitled to a reserved may be distant descendants (children, grandchildren, great-grandchildren, though the latter group for biological reasons it happens rarely). You can ask the question of when to expect the period of limitation claims for legitim in such a case? The answer is not simple (though what the law is simple? How many lawyers - only interpretation). And the theory and practice of law (court rulings) attempted to deal with the "atypical" cases in different ways.
Personally, I am an advocate of strict interpretation of the article. 1007 of the Civil Code, which amounts to saying that the limitation period is determined uniquely by the testamentary inheritance (5 years from the announcement of a will by a court or a notary public, more on this can be read here), and less clearly - with the inheritance law (but with the lawyers to deal in such a way that the limitation period to start counting from the date of opening of the inheritance, the date of death of the deceased). Fortunately or Unfortunately concerned, the doctrine of the law does not share my conservative views and notes the potential shift during the beginning of the limitation period for claims for legitim (eg. That the limitation period does not run while the heir is considered a testamentary heir based on open and announced wills). Not to say that I disagree with the legal arguments justifying such combinations: it is not possible to determine the amount of exercise within a reserved, or there is a change in the provisions of the certificate of inheritance and the heirs shall be reduced to the holder to a reserved. That happens, but if the rule is clear, I think, that you can not lead a rescue expedition and interpretation contrary to the interpretation of the language. If the recipe is wrong - it should be changed, not the patch. Anyway, the last amendment extended the limitation period of five years. For this reason, the argument found in the literature that the statutory limitation period is too short no longer relevant.
What is the council on the passage of time? Bringing an action for payment of a reserved and a stay of proceedings pending resolution of the uncertain issue. Maybe this is a way of artificially generating a number of cases (judges probably would not be happy with my proposal), but - to me the only logical in light of Art. 1007 of the Civil Code and the safest for the reserved concerned. Why the safest? And because you never know if the judge hearing the case will be of the same opinion as me, or consider arguments about the legitimacy of the limitation period counting from the other - rather than legal - period. Even if we have no guarantee that the court will be counted from that point, which will be beneficial for us.
However, I must honestly add that the prevailing view of the doctrine in favor of the designation of the limitation period, taking into account the additional circumstances.
Personally, I am an advocate of strict interpretation of the article. 1007 of the Civil Code, which amounts to saying that the limitation period is determined uniquely by the testamentary inheritance (5 years from the announcement of a will by a court or a notary public, more on this can be read here), and less clearly - with the inheritance law (but with the lawyers to deal in such a way that the limitation period to start counting from the date of opening of the inheritance, the date of death of the deceased). Fortunately or Unfortunately concerned, the doctrine of the law does not share my conservative views and notes the potential shift during the beginning of the limitation period for claims for legitim (eg. That the limitation period does not run while the heir is considered a testamentary heir based on open and announced wills). Not to say that I disagree with the legal arguments justifying such combinations: it is not possible to determine the amount of exercise within a reserved, or there is a change in the provisions of the certificate of inheritance and the heirs shall be reduced to the holder to a reserved. That happens, but if the rule is clear, I think, that you can not lead a rescue expedition and interpretation contrary to the interpretation of the language. If the recipe is wrong - it should be changed, not the patch. Anyway, the last amendment extended the limitation period of five years. For this reason, the argument found in the literature that the statutory limitation period is too short no longer relevant.
What is the council on the passage of time? Bringing an action for payment of a reserved and a stay of proceedings pending resolution of the uncertain issue. Maybe this is a way of artificially generating a number of cases (judges probably would not be happy with my proposal), but - to me the only logical in light of Art. 1007 of the Civil Code and the safest for the reserved concerned. Why the safest? And because you never know if the judge hearing the case will be of the same opinion as me, or consider arguments about the legitimacy of the limitation period counting from the other - rather than legal - period. Even if we have no guarantee that the court will be counted from that point, which will be beneficial for us.
However, I must honestly add that the prevailing view of the doctrine in favor of the designation of the limitation period, taking into account the additional circumstances.
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