The authentic will between theory and practice

• Author: Diana Geanina Ionas - Cristina Dinu
• Position: Transylvania University of Brasov Faculty of Law - Transylvania University of Brasov Faculty of Law
• Pages: 28-33

AGORA International Journal of Juridical Sciences, http://univagora.ro/jour/index.php/aijjs

ISSN 1843-570X, E-ISSN 2067-7677

No. 2 (2017), pp. 28-33

28

THE AUTHENTIC WILL BETWEEN THEORY AND PRACTICE

D.-G. IONAŞ, C.DINU

Diana-Geanina IONAȘ

Transylvania University of Brasov

Faculty of Law

*Correspondence:

E-mail: diana_ionas@yahoo.com

Cristina DINU

Transylvania University of Brasov

Faculty of Law

ABSTRACT

A will is the unilateral, personal and revocable judicial act through which a person, called a

testator, rules for the time when he is no longer alive. A specific form of will regulated by law

is the authentic will. It is characterized by the fact that the will of the testator is drawn up in

authentic form, the testator is advised, and thus the will acquires the specific force of the

authentic act. What differentiates the authentic will from other forms of will is the

authentication procedure, which is described within this article. This procedure ensures the

protection of the testator’s will, the full understanding of the effects of a legal act with death

cause.

KEYWORDS: will, authentication, public notary, proof

INTRODUCTION.

The will is the unilateral, personal and revocable judicial act, by which a person, called a

testator, rules, in any form required by law, for the time when he is no longer alive

1

.

Deriving from the Latin word testis (witness), the testament was a permanent preoccupation

of doctrine, being seen as a rigorous inventory of goods, but also as an act of last will by

which the destination of certain goods is established, thus offering “the most convincing, most

sincere and most exemplifying expression of what man understands by property and its

destiny”

2

.

By discussing the critiques phrased in specialty literature, the Romanian lawmaker correctly

described, within the new Civil Code, the essential distinction between legate and testament,

thus correctly appreciating that the will is merely the act of final will of the testator which can

comprise provisions of patrimonial character, namely legates, as well as non patrimonial

provisions. As opposed to the phrasing of the Romanian lawmaker within article 1035 of the

Civil Code, we believe that stating legates is not of the essence of the will, it pertains to its

nature, as the will contains exclusively patrimonial provisions which will come into effect

after the death of the testator.

Thus, the will is merely the legal support of the manifestation of will of the testator, being a

complex and heterogeneous legal act, which contains more legal acts, independent as legal

regime and purpose

3

. Being a legal act, namely a manifestation of will with the purpose of

1

Article 1034 of the Civil Code passed by Law no 287/2009 regarding the new Civil Co de, republished in the

Official Bulletin part I no 505 of July 15th, 2011

2

The National Union o f Public Notaries of Romania, Wills - an anthology by GeorgetaFilitti, Notarom

Publishing House, Bucharest, 2007, page 19

3

M. Popa, Civil law. Succession, Oscar Print Publishing House, Bucharest, 1995, page 6 8