We must begin by clarifying that the word comes from the Latin SUCCESSION SUCCESIO-onis, giving the idea happen.
Grammatically, happen is to enter a person or thing in the place of another. Is legally entitled to continue the ownership of which belonged to another. The Dr. Zannoni defined as "the replacement of a subject for another, in the ownership of a law on the subject of a legal relationship."
Art. Argentine Civil Code 3279 (CCA) defines succession as the transfer of assets and rights that make up the estate of a deceased person, the person who survives, to which the law or the testator called for it. The call to receive the estate is named heir in this Code.
There are two types of inheritance: I) LEGITIMATE: when the call comes from the Law, establishing an order of succession; II) PROBATE: the one based on WILL CAUSE expressed in a valid will.
Our legal support to both, and even through art. CCA 3280 in fine ... You can also tendered the inheritance of one person by the will of man in one hand, and another by operation of law. " There is no impediment to the sequences are indicated in part by the law and partly by the will of the testator.
The evolution of the law of succession, different causes have contributed to consider as more valuable not to fight the inheritance to the exclusive will of the testator. Thus, our civil legal system has adopted the system for fixing a portion of certain heirs compulsorily legitimate, unlike the regime that allowed countries with a tradition of common law, which allows the widest freedom to test.
The self is a part of the estate of the deceased that the law awards to certain category of heirs, very close to him, and which will not be deprived without just cause for disinheritance. short, the estate is divided into two parts: one reserved for the heirs, and constitutes the legitimacy of the rights, and other freely available, that the testator may freely dispose called lots available.
Now Forced heirs are those whom the law reserves a portion of the assets of legitimate causes, which can not be deprived without just cause for disinheritance (art. 3714 CCA). The heirs apparent are: 1) Descendants, 2) spouse, 3) Ancestors.
legitimate portion of the Descendants is 4 / 5, Spouse and Ancestors ½ 2 / 3 of their heritage. Considering the above, a person can test if you have Descendancy 1 / 5, Spouse and 1 / 2 Pedigree 1 / 3 of its assets, that portion would be available.
the absence of such heirs, the deceased has wide powers of disposal.
And then, What is a Will? It is a written document, signed with the formalities of law, by which a person disposes of all or part of its assets to after his death (art.3607 CCA).
Testament features are that it is a unilateral legal act, solemn, personal, property disposal, produces effects after the death of the testator and is essentially revocable. As it pertains to the solemn formality of a will, brings the failure of either form results in the revocation, unless otherwise specified. As regards the will as a disposition of property, it should be mentioned that Dr. Guillermo Borda says "This is not strictly accurate, because it can also have another object, such as the recognition of an illegitimate child or the appointment of a guardian."
Citing the ability to test, we can say that it takes to fourteen years and requires a perfect and complete reason. Because testamentary dispositions to be the direct expression of the will of the testator.
The role of the judge is to investigate what has been the true intention of the deceased, however it should be stressed that the will is a stand-alone document, to be interpreted by itself.
Different test forms, the Ordinary is the holographic will, by Public Act and the Cerrado. All of them enjoy the same legal effect.
holographic will must be entirely written, dated and signed by the testator's handwriting. As advantages, are the guarantee of secrecy, is a convenient way to test because it does not require recourse to the clerk, is simple in formal terms and cheap. And the disadvantages can be mentioned is that there is a risk of destruction of the people who are excluded by the will and also by not intervening in a notary act becomes easier to counterfeit, violence and thus will capture .
The Testament by Public Act is made by deed, which involved the notary and three witnesses residing in the place. The notary shall determine the place afforded, dates, names of witnesses, his residence and age, and if you have made or received in writing its provisions. Art. CCA 3658 provides that under penalty of nullity, the will must be read to the testator in the presence of witnesses, who must see it, and signed by the testator, the witnesses and a notary. Its advantages are that it is safer to make it impossible to destruction by those who are excluded, and to act as the notary expert is a guarantee that will not be commending futile. And the disadvantages are that has a high formal charge, any omission entails nullity, one can also mention that does not allow secrecy, making it easier to disclosure.
The Closed Testament must be signed by the testator, but may be typewritten or a third party, and need not enter the date. In the presence of five witnesses must be delivered to the clerk, the envelope itself must be "dated" and signed by them stating that contains the will. The advantages that are more secret than the will by public act, and the holograph is that warrants further the conservation and thus prevent their destruction. Disadvantages are cumbersome formalities, including the requirement of five witnesses in the presence of a notary.
Finally, we assume that the special forms of test as the Testament Military Maritime Testament, Testament Testament Consular and during epidemics. Which will be discussed later.
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