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Recent developments of the Lithuanian and Romanian "testate successions" (terminological peculiarities).

The General Introduction

Nowadays, constitutions of many civil law countries guarantee the right of inheritance, which is generally defined as "the devolution of property rights, duties and some other personal non-property rights of a deceased natural person to his heirs by operation of law (intestate) or/and to successors by the will (testate)" (Perkumien, Tamasauskiene, 2013). Moreover, "inheritance law is the unity of norms, which regulates the legal destiny of a deceased person's property" (Zoidze, 2000: 15). Also, "it could appear only after the appearance of the private property" (Javakhishvili, 1984: 272). The rules of inheritance are usually applied after the death of a person. They are regulated by the Law of Succession, which is regarded as an integral institution of the civil law. Majority of civil law jurisdictions recognize two major methods of inheritance upon death: by the will (a testate succession) and by operation of law (an intestate succession). These types of inheritance are greatly influenced by socio- cultural, socio-economic and even, political factors.

Nowadays, many scholars pay the greatest attention to the development of the "Inheritance laws" of some Post-Soviet States. The change of political system of former communist countries has stipulated the emergence of new juridical norms. The "renovated" legal regulations, newly-established terminological units, their resemblance and difference--this is the major theme of our paper and one of the most prominent problems of today's juridical world.

The paper pays the greatest attention to the development of the juridical terminology. It discusses terminology as "the "super system", which stands higher than the systems of concepts and terms" (Chirakadze, 1995). Moreover, this system is considered as "the unity of terms, which gathers ... logically related ones" (Metreveli, 1990).

1. The Contemporary "Testate Succession" of the Republic of Lithuania (According to the Civil Code of the Republic of Lithuania of 2011)

After a person's death a universal devolution of the estate takes place--"death of the devisor does not bring his property, property rights and duties to a termination. They devolve to the heirs of the deceased, and, in the instances when there are no successors, or none of the successors accepts succession, the rights of the deceased shall devolve to the state" (Perkumien, Tamasauskiene, 2013).

Similarly to many other civil law jurisdictions, the contemporary Lithuanian law differentiates two ways of property transference: "Paveldejimas pagal testamentq" (a testate succession) and "Paveldejimas pagal {statymq' (an intestate succession). The succession arises by operation of law ("Paveldejimas pagal {statymq') in the events, when there is no will/testament or the existed testament has been invalidated. In cases of a valid will, "paveldejimas pagal testamentq' takes place.

According to the commonly excepted legal definition: an "inheritance law-- sometimes called wills and probate--is concerned with the distribution of a person's property after his (her) death" (Haigh, 2006: 154). It means, that "the successors occupy the part of the deceased person in property relations. This type of permanent link between generations is a sine qua non (an essential precondition) for public stability and perpetuity of cultural, property and spiritual traditions" (The Commentary of the Civil Code of Georgia, 2000: 3) all over the world.

The contemporary Civil Code of the Republic of Lithuania makes distinction between the official ("oficialieji testamentas") and private ("asmeninis testamentas") wills. "Oficialieji testamentas" are usually "made in writing in two copies and attested by the notary public or an official of the Consulate of the Republic of Lithuania in the relevant state" (The Civil Code of the Republic of Lithuania, 2011). In contrast to an official will, "asmeninis testamentas" is written up in hand by the testator indicating the first name and surname of the testator, the date (a year, a month, a day) and place where the will was made, expressing the true intent of the testator and signed by him" (The Civil Code of the Republic of Lithuania, 2011).

Any type of a will is usually prepared in a written form by one person (a testator--"testatoriaus"). However, the creation of a testament by two persons (only spouses) is also acceptable. Such a testament is called a "joint will" ("bendrasis sutuoktiniu testamentas") and belongs to the category of "official wills". The Article 5.43 of the Lithuanian Civil Code gives the following definition of "bendrasis sutuoktiniu testamentas": "By their joint will, the spouses appoint each other as the successors and after the death of one of the spouses, the whole property of the deceased (including the part of the common property of the spouses therefrom) shall be inherited by the surviving spouse, except the mandatory share of succession" (The Civil Code of the Republic of Lithuania, 2011). "Bendrasis sutuoktiniu testamentas" is usually created and sighed by the spouses in the presence of a notary or any other person attesting the will. Besides mutual devolution of the estate, "the spouses may bequeath their whole property or a part thereof to the society for worthy causes or to charity. Such a direction of the will may be effectuated from the property of one of the spouses after his (her) death or from the common property of the spouses after the death of the surviving spouse" (The Civil Code of the Republic of Lithuania, 2011). Generally, the Lithuanian legal system enables the testator to bequeath his/her estate, its part or a single thing to the society for useful or charitable purposes. A successor of such property may be even a legal person established for the execution of the will of a testator.

The given attitude of the Lithuanian Civil Code directly indicates, that testators are free to bequeath their estate to anyone they wish: "1. Any natural person may bequeath all his property or a part thereof (including ordinary house furnishing and household equipment) to one or several persons irrespective of whether they are his heirs by operation of law, likewise to the state, municipalities or legal persons; 2. A testator may bequeath all his property or a part thereof to legal persons which will have to be established in executing the will, likewise to natural persons not yet conceived and born; 3. A testator may by his will disinherit one, several or all of his heirs; 4. In the event where the testator failed to indicate what share of his estate he bequeathed to every of his successors by the will, the estate shall be divided by equal shares to all of them; 5. In the event where the inheritable estate is divided by the will in such a way that all the shares in their totality exceed the amount of the whole estate, the share of every successor shall be correspondingly reduced; 6. In the event where the totality of all the shares is smaller than the amount of the whole estate, taking in regard the content of the will, the shares of the estate devolved upon each of the successor shall be proportionally increased or the remaining property shall be devolved by the operation of law" (The Civil Code of the Republic of Lithuania, 2011). Despite a vividly expressed freedom of disposition, the law of the Republic of Lithuania, as an integral part of the world civil law system, limits the testator's rights of devolution of the estate by recognizing the so-called "mandatory share" or "legitim" ("privalomoji dalis"). According to the Article 5.20 of the Civil Code of the Republic of Lithuania of 2011:

"1. The testator's children (the adoptees), spouse, parents (the adoptive parents), who were entitled to maintenance on the day of the testator's death shall inherit irrespective of the content of the will a half of the share that each of them would have been entitled to by operation of law (a mandatory share) unless more is bequeathed by the will;

2. The mandatory share shall be determined taking in regard the value of the inheritable estate, including ordinary house furnishing and household equipment" (The Civil Code of the Republic of Lithuania, 2011).

It is worth mentioning, that the concept of the "mandatory share" was known even during the Soviet epoch. Therefore, "The testator's incapable children (the adoptees), spouse, parents (the adoptive parents) and persons who were entitled to maintenance inherited irrespective of the content of the will not less than 2/3 of the share that each of them would have been entitled to by operation of law (a mandatory share)" (The Large Soviet Encyclopaedia, 1974).

Therefore, the Lithuanian testate succession comprises three major elements:

* testatoriaus (a testator)--a creator of a will;

* ipedinis (an heir)--a person or a legal entity, which receives property from the estate of a deceased, through a will or the laws of intestacy;

* testamentas (a will)--a document created by the testator.

The property of a deceased person can be considered as the fourth and one of the major element of the contemporary Lithuanian (and not only the Lithuanian) hereditary relationships. Therefore, the following is stated in Article 5.1 of the Civil Code of the Republic of Lithuania of 2011:

"The following shall be subject to succession: material objects (movable and immovable things) and non-material objects (securities, patents, trade marks, etc.) claims of patrimonial character and property obligations of the bequeather; in cases provided for by laws--intellectual property (authors' property rights to works of literature, science and art, neighbouring property rights and rights to industrial property), as well as other property rights and duties stipulated by laws.

The following shall not be subject to succession: personal non-property and property rights inseparable from the person of the bequeather (right to honour and dignity, authorship, right to author's name, inviolability of creative work, to the name of performer and inviolability of performance), right to alimony and benefit paid for the maintenance of the bequeather, right to pension, except in cases provided for by laws" (The Civil Code of the Republic of Lithuania, 2011).

The Lithuanian inheritance law sets special rules for the transference such items of property as house furnishing and household equipment. Article 5.14 of the Lithuania's Civil Code states:

"Ordinary house furnishing and household equipment shall be devolved to the intestate heirs irrespective of their degree of descent and the share of inheritance if they resided together with the bequeather for a period of at least one year before his death" (The Civil Code of the Republic of Lithuania, 2011).

And finally, it's necessary to distinguish a surviving spouse's rights of succession. They always become prominent in the context of the study of hereditary rights of the members of a deceased person's family. In the juridical systems of some world countries, a surviving spouse occupies an important place and acquires some special rights of inheritance. However, Article 5.13 of the Civil Code of the Republic of Lithuania of 2011 presents the following particularities of a testator's property transference:

"The surviving spouse of the bequeather shall be entitled to inherit pursuant to intestate succession or alongside with the heirs (if any) of either the first or second degree of descent. Together with the first degree heirs, he shall inherit one fourth of the inheritance in the event of existence of not more than three heirs apart from the spouse. In the event where there are more than three heirs, the spouse shall inherit in equal shares with the other heirs. If the spouse inherits with the second degree heirs, he is entitled to a half of the inheritance. In the event of the absence of the first and second degree heirs, the spouse shall inherit the whole inheritable estate" (The Civil Code of the Republic of Lithuania, 2011).

2. Some Important Insights into the Contemporary Post-Soviet Legislations (According to the Civil Law of the Republic of Latvia and the Civil Law of the Russian Federation)

During the study of the forms of the contemporary Lithuanian law of succession, a parallel must be drawn between the Soviet and some Post-Soviet legal formations. This parallel will help us to comprehend some diachronic and synchronic aspects of the historical processes. At the same time, it will reflect the ongoing processes of the development of "testate successions" of post-communist countries--the countries of the former USSR (The Union of Soviet Socialistic Republics). Therefore, the picture of the strategies of post-socialistic legal challenges will be significantly fulfilled.

It is a well-known fact, that during the Soviet era, the communist legislation recognized only a notarial form of a will (The Civil Legislation of the Russian Federation, 1997). The same can be said about the Russian post-Soviet juridical system (even the law of 1996). However, after the introduction of some significant amendments, the Russian legislators made distinction between "[TEXT NOT REPRODUCIBLE IN ASCII]" (a notarially attested will) and [TEXT NOT REPRODUCIBLE IN ASCII]" (a closed will). Generally, "[TEXT NOT REPRODUCIBLE IN ASCII]" is prepared by a testator. In certain cases, a will in the words of the testator is written down by a notary. Therefore, Article 1125 of the contemporary Russian Civil Code specifies: "a notarially attested will must be created by the testator or his/her words must be written down by the notary. The technical facilities (a computer, a typewriter, etc.) can also be used for writing or recording a will" (The Civil Code of the Russian Federation).

In contrast to "[TEXT NOT REPRODUCIBLE IN ASCII]", "[TEXT NOT REPRODUCIBLE IN ASCII]" is made and signed personally by a testator. Moreover, he/she is entitled "to create a will without providing other persons, including a notary, with the chance of familiarizing himself/herself with its content (a closed will) ... The closed will is passed in a sealed envelope to a notary in the presence of two witnesses who put their signatures on it. The signed envelope is put into another one and sealed in the presence of a notary, which makes a superscription giving an information about the testator ." (The Civil Code of the Russian Federation).

Like the post-socialistic Russian legal system, the contemporary civil law of Latvia differentiates two major forms of succession: testate and intestate. The testate devolution of property is carried out by a valid will (or a testament). The contemporary civil law of the Republic of Latvia makes distinction between three major forms of a will: a "public will", a "private will" and a "reciprocal will". According to the Article 433 of the Latvian legislation: "public wills" (or "notarized wills") "are prepared at the notarial office, at the orphan's court or abroad--in the Consulate of Latvia" (The Civil Law of the Republic of Latvia, 2010: 17). They need the presence of a testator and two witnesses: "A written private will need not necessarily been written by a testator himself or herself, but he or she must sign it. A testator must either sign the will in the presence of the witnesses or must declare to the witnesses, that he or she has signed it in person. If the testator is illiterate or is unable to write, then the third person may sign in his or her place, except of the two witnesses, but this must be mentioned in the will itself and confirmed by the witnesses" (The Civil Law of the Republic of Latvia, 2010: 20).

A "private will" can be prepared orally or in a written form. "The Civil Law of the Republic of Latvia" recognizes "witnessed" and "unwitnessed" forms of a "private will". Hence, the oral declarations are made only in cases of emergency and have a limited duration. Moreover, "oral wills" are usually regarded as privileged ones. Accordingly, the Article 460 of The Civil Law of the Republic of Latvia clearly makes the following statement: "If due to the exceptional circumstances, an estateleaver is unable to make a written private or public will, then he or she will have the right to state his or her last will orally. Such an oral will must be spoken in the presence of two witnesses invited for this purpose. They will be subject to the provisions of the Section 448, with the exception that literacy of the witnesses is not a requirement" (The Civil Law of the Republic of Latvia, 2010: 21). However, "if upon the cessation of circumstances set out in the Section 460, it is possible for the estate-leaver to make a written will, then the oral will shall cease to be valid three months after the cessation of the referred to the exceptional circumstances" (The Civil Law of the Republic of Latvia, 2010: 21). In contrast to the public and private testaments, a "reciprocal will" is defined as a testament "whereby two or more persons, in the form of one joint document, reciprocally appoint each other as an heir" (The Civil Law of the Republic of Latvia, 2010: 42).

Therefore, the overview of the Lithuanian, Russian and Latvian "testate successions" has vividly depicted the picture of the post-socialistic development of the law of the former USSR. The legal systems of the above mentioned countries nominate a "will" as the most commonly used legal instrument by which a testator regulates the rights of others over his (her) property after his (her) death. The Lithuanian Civil Code makes distinction between official (""oficialieji testamentas"), private ("asmeninis testamentas") and joint ("bendrasis sutuoktiniu testamentas") testaments. The Russian legislation differenciates "[TEXT NOT REPRODUCIBLE IN ASCII]" (a notarially attested will) and "[TEXT NOT REPRODUCIBLE IN ASCII]" (a closed will). The contemporary civil law of the Republic of Latvia presents a "public will", a "private will" (having: "witnessed" and "unwitnessed" forms; written and oral forms) and a "reciprocal will". "Oficialieji testamentas", "[TEXT NOT REPRODUCIBLE IN ASCII]" and a "public will" can be considered as the Soviet-type testaments and can be identified under the umbrella of "a notarially attested will". In contrast to a notarial will, "asmeninis testamentas", "[TEXT NOT REPRODUCIBLE IN ASCII]" and a "private will" can be regarded as the Post-Soviet innovations. Moreover, the special attention must be paid to the Latvian "oral wills", which have no equivalents in the Russian and Lithuanian legislations. The implementation of such type of a testament indicates to the vivid direction of Post- Soviet countries towards the acquisition of capitalistic legal norms.

3. The Contemporary Romanian "Testate Succession" (According to the Civil Code of Romania)

Similarly to many other jurisdictions, the Romanian inheritance law makes distinction between testate and intestate ways of succession. Testate succession considers the creation of a valid will, while an intestate succession in carried out under the laws of intestacy.

The Romanian inheritance law has a long history of development. In the old law, the transmission of a deceased person's property was governed by the legislation, which was under the influence of the "Roman law based on the principle of blood relation to the defunct. In the conception of this legislation, the defunct's patrimony had to stay with his blood relatives, which means that it had to be preserved in the same family. The thorough application of the above mentioned principle and the fear of transmitting a family patrimony to the surviving spouse was an obstacle to the recognition of the direct succession right for a long time" (Urs, 2009: 210). Therefore, in contrast to the blood relatives, a surviving spouse faced disadvantages throughout the centuries--when the spouses had no children, a surviving spouse received only one sixth of the inheritance, while in cases of surviving children, a widow inherited only the right of usufruct over a portion of the inheritance equal to the child's portion. However, the adoption of the Romanian Civil Code of 1864, "inspired by the French Civil Code of Napoleon of 1804, provided that the surviving spouse acquired the inheritance only after the last blood relative of the 12th degree defunct" (Urs, 2009: 210). Later, under the law of 1944, the rights of a widower (a widow) expanded. Therefore, he (she) acquired: a general inheritance right, a temporary right of the occupancy of the house and a special right over wedding gifts and movables of household.

Nowadays, according to the contemporary Romanian law, during an intestate succession, a spouse is regarded as one of the legal inheritors of a deceased person and has the right to at least % of the inheritance. Moreover:

--In addition to the fraction of the inheritance established by law, the surviving spouse has a special inheritance right to furniture, domestic objects and wedding gifts;

--If the surviving spouse is not the owner of the house where he/she has lived for at least one year since the death of the deceased spouse, then he/she has a right of habitation to that house;

--In the event of no inheritors, the surviving spouse inherits everything (What inheritance laws apply in Romania? 2011).

Despite having the above mentioned inherit ance rights, a surviving spouse is regarded as a "separate inheritor" in the contemporary Romanian Civil Code. He (she) stands separately and is not included in the major four classes of heirs nominated during the intestate succession. Therefore, a deceased person's intestate estate is distributed in the following way:

--The first class of inheritors--the deceased's descendants: children, grandchildren;

--The second class of inheritors--the deceased person's privileged ascendants and collaterals: parents, brothers and sisters and their descendants until the fourth degree;

--The third class of inheritors--the deceased person's ordinary ascendants: grandparents, parents of grandparents, etc.;

--The fourth class of inheritors--the deceased person's ordinary collaterals-- relatives until the fourth degree, for instance: uncles, aunts, primary cousins, brothers and sisters of the grandparents.

During the intestate succession, the existence of more preferable classes of successors excludes the less preferable ones. However, in contrast to the testate succession, legal inheritance is less popular nowadays.

Testate succession i.e. the inheritance established through the last will or testament is usually regarded as the distribution of the estate of a deceased person under his (her) valid will. It comprises three major elements:

Testator (a testator)--a person who creates a will;

Legatar (an heir)--a person or a legal entity, which receives property from the estate of a deceased, through a will or the laws of intestacy;

Testament (a will)--a document created by the testator.

Therefore, in cases of the testate succession, the distribution of the property depends on the testator, who makes a valid will. The contemporary Romanian Civil Code differentiates two major types of wills: authentic and holographic. The "authentic wills" are drawn up by the civil law notaries. They are usually recorded in the register, while the "holographic wills" are written, dated and signed by the testator himself (herself). Both types of wills are kept by the civil law notaries.

It's worth mentioning, that the existence of the testate succession does not mean the total freedom of a testator's wish. The concept of a "reserved portion" restricts the testator's rights of disposition. The given portion is transferred to the surviving spouse, the privileged ascendants and the descendants of the deceased. Moreover: the estate can be freely transferred to anyone. However, sometimes certain restrictions regarding the ownership of the land by foreigners or non residents of Romania occur.

4. The Comparative Analysis of the Contemporary "Testate Successions" of Romania and the Republic of Lithuania

All the above mentioned enables us to conclude, that "all-embracing" process of globalization has stipulated an international integration arising from the interchange of the experiences depicted in different areas of life. Drastic changes have been seen in the laws of the countries of the former USSR. The given paper has presented a study of the Romanian and Lithuanian legislations, which were formed on the basis of the legal system of the USSR. The major emphasis has been put on the concept of "testate succession" and terms related to it. The carried out research enables us to single out the following major outcomes:

The contemporary laws of Lithuania and Romania make distinction between testate and intestate successions. The legal systems of both countries single out three major elements of testate succession: a testator (the Romanian--testator; the Lithuanian-- testatoriaus), an heir (the Romanian--legatar; the Lithuanian--(pedinis) and a will (the Romanian--testament; the Lithuanian--testamentas);

The contemporary laws of Lithuania and Romania nominate a "will" as the most commonly used legal instrument by which a testator regulates the rights of others over his (her) property after his (her) death. The Lithuanian Civil Code makes distinction between official (""oficialieji testamentas"), private ("asmeninis testamentas") and joint ("bendrasis sutuoktiniu testamentas") wills, while the Romanian law differentiates the authentic and holographic testaments. We believe, that the "oficialieji testamentas" is similar to an "authentic will", while the "asmeninis testamentas" and a "holographic testament" can be categorized as private wills. Both of them are written and signed by a testator herself (himself). The major difference between the Lithuanian and Romanian legal systems lies in the fact, that the concept of a joint will and its corresponding legal terms are not found in the Romanian law;

The Lithuanian and Romanian testate successions restrict the testator's rights of disposition via the establishment of a "reserved portion" ("legitim") (the so- called Lithuanian "privalomoji dalis"). In Romania the given portion is transferred to the surviving spouse, the privileged ascendants and the descendants of the deceased according to the percentages established by the law. The Lithuanian testate succession gives a more restricted disposition of a "privalomoji dalis"--similarly to the law of the former Soviet Union (the former USSR). It equals to a half of the share that each of the heirs would have been entitled to by operation of law.

5. Major Conclusions and proposals

Finally, it's worth mentioning, that the comparative analysis of the Lithuanian and Romanian legal systems revealed their major differences and similarities. Obviously, the existed terminological and conceptual gaps will be filled during the flow of time via the influence of all-embracing globalization. The post-communist Lithuanian and Romanian testate successions have undergone important changes after the completion of the Soviet era--the implementation of a private will and the Romanian exact percentages of the distribution of a "legitim" have simplified the process of the transference of the estate. Supposedly, the final establishment of capitalism will "increase the homogeneity" of Romanian, Lithuanian and other European legal systems. The given study may play an important role in this process. However, the further investigation of the legal systems will fulfill the picture of the development of the post-communist area.

References

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Haigh, R. (2006). Oxford handbook of legal correspondence. Oxford University Press. Javakhishvili, I. (1984). Works in twelve volumes. Volume VII. Publishing House of Tbilisi University.

Metreveli, N. (1990). The Old Georgian Legal Terminology. Dissertation. Tbilisi. Perkumiene, D., Tamasauskiene, V. (2013). Peculiarities of real property intestate succession in Lithuania. Legal Theory Review. No 1.

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The Civil Code of the Russian Federation. Law Today. [accesed on 01.04.2014] retrieved from http://lawtoday.ru/razdel/codex/graj-kod/index.php

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Urs, I. (2009) The inheritance rights of the surviving spouse provided by the Romanian law. Revista de Derecho de la Pontificia Universidad Catolica de Valparaiso XXXII. 209-220.

What inheritance laws apply in Romania? (2011). [accessed on 01.04.2014] retrieved http://www.globalpropertyguide.com/Europe/Romania/Inheritance

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Article Info

Received: April 20 2014

Accepted: May 15 2014

Irina Gvelesiani, Associate Professor, PhD, Ivane Javakhishvili Tbilisi State University, The Faculty of Humanities, English Philology specialization, Phone: + 995 5 93 32 70 07, E-mail: irina.gvelesiani@tsu.ge
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Title Annotation:Original Paper
Author:Gvelesiani, Irina
Publication:Revista de Stiinte Politice
Date:Apr 1, 2014
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