Author: Milen Parvanov
According to the Bulgarian legislation, any person who has reached the age of 18 and who is not placed under full prohibition and can act reasonably can dispose of his property after his death through a will. Case law complements this definition. By decision No. 117/10.11.2015 under city ordinance No. 710/2015 of II year Fr. The Supreme Court ruled that a will is a unilateral act of gratuitous disposal of property after death. According to the form, the will can be notarized or handwritten – varieties described respectively in art. 24 and art. 25 of ZN.
The notarial will, as we can conclude from the name, is drawn up by a notary in the presence of two witnesses and according to the procedure described in art. 24 of the Civil Code, while the handwritten will is prepared entirely by the testator in handwriting and handed over to a notary – it is regulated by Article 25 of the Civil Code. Regardless of the form, however, the will always contains at least one motive for its creation. Hand of senior male candidate holding pen and filling in application form together with woman at table. Senior partner signing contract
The reason why a testator would bequeath his property to a testator’s estate are numerous, but this does not mean that every bequest is valid. The legislator has set out the hypotheses in which a will is void, in art. 42 of the Civil Code – it is null and void (does not create legal consequences) when it is made in favor of a person who does not have the right to receive an inheritance under a will, when the norms are not followed when drafting it, when the provisions of Art. 24 and 25 or when the testamentary disposition or the motive on which it is made is contrary to the law, public order or good morals. The above-mentioned decision No. 117/10.11.2015 according to city decree No. 710/2015 of the II year o. clarifies that, bearing in mind this norm, the motives are important for revealing the will of the testator, which can be numerous – to give thanks, reward, to render justice, etc. The motive is often prompted by the person’s living conditions, as well as his moral inclinations and needs. The question before the Supreme Court was whether a will made on the basis of both care already provided for the testator and future care that will be provided for him is null and void. A will written for the purpose of rewarding an heir is not remunerative in nature for several reasons, the first of which is that the usual motive behind most bequests is a gratuitous one, which is entirely within the law. Another important feature is that the norm in Art. 42, b. “c” provides that a will is void if it or its sole motive for making it is contrary to law, public order or good morals. The court interpreted the norm and came to the conclusion that it does not fully take into account wills that are determined by more than one motive and that, upon a literal interpretation of the norm, it becomes applicable only when there is only one motive and it contradicts the law, public order or good manners. It is therefore held that where there are several motives in a will, one of them must be consistent with law and morality in order to give rise to the will an act which makes bequests expressing both a motive of gratitude for care already taken and an expectation for future care, valid as they are not null and void on the basis of Art. 42, b. “c” of ZN.
However, in other decisions, a completely opposite opinion is held. Examples of this are decision No. 246/17.12.2014 under city decree No. 1073/2014 of the 1st year o. and decision No. 25/16.05.2016 under city decree No. 5043/2015 of the II year, which were used in similar matters related to establishing the presence of a compensation clause in the reasons for the will. In both cases, the will was motivated not only by care taken up to the time of its preparation, but also by expected future care on the part of the testator. In these cases, the court panels rule in a radically opposite way compared to the above-mentioned decision – it is assumed that both wills were motivated by the provision of a future performance, this being the future care of the testator. For this reason, the judicial panels have considered that these wills are null and void on the basis of Art. 42, b. “c” of ZN, as the motive contradicts the legal nature of the will, as it requires performance and this makes this unilateral act remunerative.
At the present moment, there are two radically opposite judicial practices, which requires the Supreme Court to rule on the controversial interpretation of Art. 42, b. “c” of ZN.