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Disposition by Will

Circumstances of the case

The Supreme Court is examining the case concerning an inheritance claim, where, according to the circumstances, it appears that an heiress has disposed of her estate by will, appointing her spouse’s nephew as the sole heir. The sole legal heir of the testatrix, disagreeing with this disposition, has appealed to the court of first instance claiming that the will is in contravention of Article 377 of the Civil Code (CC). Similarly, the Court of Appeals of the General Jurisdiction (Vlora Court of Appeals) is also considering another case concerning the partial finding of absolute invalidity of the will of a citizen, who has appointed his cohabitant and minor son as heirs, identifying Article 377 of the Civil Code (CC) as a provision applicable to the resolution of the matter in relation to Article 406 of the CC, according to which the disposition beyond the lines of heirs provided for in Article 377 of this Code is absolutely invalid.

The Supreme Court and the Court of Appeals of the General Jurisdiction (Vlora Court of Appeals) have assessed the inconsistency of Article 377 of the Civil Code with the Constitution of the Republic of Albania, deciding to suspend judgments and refer the cases to the Constitutional Court (CC). The latter has consolidated them into a single case.

Article 377 of the Civil Code provides that: “An heir who has no descendants or ascendants, or siblings, has the right to dispose of his/her property by will in favor of any natural or legal person.”

Assessment by the Constitutional Court

i) Regarding the legitimization of the referring courts

The Constitutional Court assesses that the issue of the legitimization of the subjects that may address the court is considered one of the main aspects enabling the initiation of the constitutional process. The court that triggers the incidental control of the constitutionality of the legal norm, provided for in Article 145 (2) of the Constitution and Article 68 of Law No. 8577/2000, “On the organization and functioning of the Constitutional Court of the Republic of Albania,” must meet several cumulative criteria:

a) to have identified the law to be applied for the resolution of the case and to have created the conviction that its judgment cannot conclude independently from the issue in the Constitutional Court – thus establishing a direct connection between the law and the constitutional issue; b) to have presented convincing reasons for the unconstitutionality of the law, referring to specific provisions or principles of the Constitution; c) to have made all efforts to interpret it in accordance with the Constitution.

The Constitutional Court assesses that the referring courts have fulfilled the above criteria.

ii) Regarding the foundation of the claims

The Constitutional Court finds that the provision in the will aims to ensure the transfer of property rights according to the free will of the testator, even after his death. However, this right is not unlimited; therefore, it remains the duty of the legislator to intervene to make the necessary adjustments.

According to Article 372 of the Civil Code, in principle, the testator is free to dispose of his property after death, while Article 377 of the Civil Code specifies that the testator may dispose in favor of any of the legal heirs, but only within the first three lines of legal inheritance, and only if there are no legal heirs within the first three lines, the testator may leave his property by will to any of the heirs of the other lines, as well as outside the circle of legal heirs. However, Article 360 of the Civil Code, which regulates inheritance by law, designates as legal heirs the relatives up to the sixth degree, according to the order specified in the following provisions.

In this situation, the Constitutional Court assesses that Article 377 of the Civil Code constitutes a limitation on the testator’s right to freely dispose of his property after death, not only to persons outside the circle of legal heirs but also within the latter. Consequently, the Constitutional Court has evaluated whether this limitation meets the criteria of Article 17 of the Constitution (the proportionality test).

a) for the criterion of limitation by law

The Constitutional Court assesses that, given that the limitation is provided by the content of Article 377 of the Civil Code, with reference to Article 17 of the Constitution, this criterion appears to be respected, both formally and substantially.

b) for the criterion of the existence of a public interest

The Constitutional Court assesses that the public interest must be understood in a relative sense, depending on the different situations that arise and for each specific case, as this concept is quite broad.

The court notes that the limitations on property rights regarding the freedom to dispose by will, as defined by Article 377 of the Civil Code, aim to protect the narrow family circle and are intended to guarantee the legal order and stability of legal relations in society. Consequently, the intervention in the manner of exercising the testator’s private property right responds to the public interest, thus fulfilling the second criterion provided by Article 17 of the Constitution.

c) for the criterion of proportionality (balancing the right against the intervention and the situation that dictates it).

The Constitutional Court has pointed out that several criteria must be considered for the assessment of proportionality: (i) whether the legislature’s objective is sufficiently important to justify the limitation of the right; (ii) whether the measures taken are reasonably connected to the objective, they cannot be arbitrary, unfair, or based on illogical assessments; (iii) whether the means used are not more severe than necessary to achieve the desired objective.

The proportionality of a limitation is assessed on a case-by-case basis, taking into account that the above criteria should be analyzed in conjunction with each other.

The Court observes that the provisions of Articles 377 and 379 of the Civil Code, read together, impose a limitation on the testamentary disposition of property in two directions: i) the will must not infringe upon the legal reserve (Article 379); ii) the testator may dispose in favor of any of the legal heirs, but only within the first three degrees of legal inheritance, and in this case, only if there are no heirs within the first three degrees, can the testator leave his property by testament to any of the heirs of the other degrees, as well as outside the circle of legal heirs (Article 377).

The Constitutional Court assesses that Article 377 does not respond to the economic and cultural developments that have occurred since the entry into force of the Civil Code (1994). The traditional concept of family, which includes marriage, has expanded to include de facto relationships (cohabitation). In this sense, the Constitutional Court assesses that the objective of the legislator and the measures taken for this purpose at the time of the entry into force of the Civil Code (1994) may not be the same as today’s.

The Court emphasizes that in principle, the aging of a norm does not constitute per se a reason for its unconstitutionality, except in cases when it does not respond to the social, cultural, economic, and moral development of society to an extent that does not respect the essence of human rights and freedoms.

Based on the foregoing, the Court finds that although the legislator has included the spouse in Article 361 of the Civil Code as a first-degree legal heir, it has not included them in the circle of testamentary heirs.

The Court considers that the surviving spouse should have a place in the circle of testamentary heirs equal to that of the children. Therefore, the contested provision, by not considering the surviving spouse as a testamentary heir, imposes a limitation regarding the circle of testamentary heirs and does not guarantee the free disposition according to the testator’s will over any part of his estate.

The Court considers that the absence of these provisions is deemed unfair and based on illogical assessments. The limitation, although serving the public interest, is not proportional according to the criteria set forth in Article 17 of the Constitution. Therefore, the provision contains a legal loophole that brings negative consequences for the rights of the heir, disproportionately infringing upon his right to dispose of property mortis causa.

In accordance with the reasoning of the Constitutional Court, the Parliament of Albania is obliged to fill the legal gap within 1 year from the entry into force of the decision

Source: Decision of the Constitutional Court, No. 69 dated December 27, 2023.

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