TESTAMENTARY FORMALITIES IN THE TIME OF PANDEMIC

Abstract

The formalism in testamentary law is a result of the need to protect the freedom of testamentary disposition and the authenticity of the last will of the testator. Proposed formalities are supposed to serve multiple purposes in testamentary law: evidentiary, cautionary and protective. Having in mind the level of modern society development and technologies, as well as the new challenges we face with today (such as pandemics, natural disasters, etc.), the question arises: whether the prescribed formalities in testamentary disposition are justified in terms of purposes they are suposed to serve? Modern testamentary law is characterized by the trend of liberalization of testamentary forms, mitigation of formalities, abolition of certain obsolete forms of testament, but also introduction of new forms dictated by new social and economic, political circumstances and new requirements of legal trade mortis causa. The experience with the Covid pandemic confirmed the importance of these issues. The state of the pandemic indisputably restricts the freedom of testation in several directions: limited contacts prevent the presence of notaries or judges as representatives of public authorities as a mandatory element of form in public testamentary forms, and the possibility of their composition; it is impossible or difficult to ensure the presence of testamentary witnesses in allographic testament and thus difficult to implement the principle of unitu actu as a key feature of the testamentary form; finally, illiterate people and people with disabilities remain deprived of the opportunity to exercise their constitutionally guaranteed freedom of testing due to being unable to make an holographic legacy, as their  sole option available within the extraordinary circumstances of a pandemic, due to above mentioned restrictions. As the basic purpose of the testamentary right is to enable a testamentarily capable person to manifest his last will in whatever circumstances he finds himself, extraordinary circumstances during a pandemic indisputably restrict the freedom of testing. The new pandemic circumstances have prompted the legal public to think in the following directions: whether there is a need to introduce new forms of testament during a pandemic (as was done in Spain, which regulated testament during a pandemic); should certain elements of the form of the will be modernized (e.g. allow the possibility of the participation of the witness of the will in the process of making the will online via audio-video link) ?; and finally, should the door be opened to the digitalization of the will and the possibility of compiling an electronic will and mark the beginning of a new era of testamentary law? These and related issues are the subject of analysis in this paper, and will be viewed through the prism of comparative legislation, with special emphasis on the legislation of the countries of the Roman legal tradition that precedes the form of bequest during a pandemic. In order to determine the guidelines for further development of testamentary law and its rationalization, the situation in common law countries will be pointed out, and some examples from their case law will be analyzed, considering that a significant step towards digitalization of testamentary law has already been made in these legal systems. Based on this comparative analysis, which implies the application of primarily comparative law and dogmatic methods, as well as axiological through a new approach to the testamentary form, we try to determine whether testamentary forms and formalities are harmonized with the needs of modern society, especially in pandemics. Finally, at the end of the paper, the author tries to give proposed solutions in the direction of reforming the testamentary formalities de lege ferenda, trying to establish a balance between legal certainty and freedom of testing.