Since the adoption of the Companies Act in 1993, the question has arisen whether the Inheritance Act imposes any restrictions on the disposal of shares and stocks, as well as where the limits of the testator’s authority lie when deciding to draft a will or enter into one of the contracts most commonly described as an inheritance contract. Although the question is not new, it is evident that there are quite distorted perceptions in the public, which can cause many problems. A will does not have to be made; if there is none, inheritance occurs according to the law. However, anyone who has testamentary capacity (sixteen years and the ability to reason) can draft a will as a declaration of their last will. In doing so, the legislator sets some limitations that need to be known.
Three limitations
The first limitation is that the testator (the one who decides on the will is called the testator) is free to dispose of only that part of the property that does not jeopardize the so-called necessary or child or female share (generally half of what someone would receive if there were no will). This limitation is generally circumvented by a maintenance contract. The second limitation is that a will cannot determine, or impose, who will inherit the heir. Such a testamentary provision is prohibited under Article 44 of the Inheritance Act. However, it is permissible to determine that the testamentary heir is person X if person Y refuses to be the heir (and that always depends on the will of the testamentary heir). The third limitation is that impossible, impermissible, and immoral conditions and orders are considered non-existent. In practice, it is known that, for example, an immoral condition is that the heiress does not marry, and it should equally be immoral for her to marry. The real problem is the application of this provision from the Inheritance Act to the Companies Act: what if someone leaves their shares to person X on the condition that they are the best director of the company (this does not depend on the will of the heir, so it would obviously be too great a burden for them – the possible maximum is that they invest all their knowledge and skills), what if it requires harming the creditors of the company (which is obviously impermissible), what if it requires unlawful termination of the employment contract of one or more employees (and that would also be impermissible), what if it imposes the sale of the company’s assets favoring someone or some (and that is impermissible) etc.?
Maintenance contracts
If a property owner is led to conclude that such testamentary provisions are acceptable (meaning they are legal), they will draft a will that will determine such as an order or condition for the testamentary heir who is determined in the context of the belief that they will fulfill the orders and/or conditions. When it is determined that these conditions/orders are impermissible, the provision regarding who is determined as the testamentary heir will remain, and it will be very difficult to imagine the annulment of the testamentary provision that determined the heir because the testator believed that it was a legal provision in the will that ordered that person to fulfill some order or imposed an unlawful condition. Namely, if something is considered non-existent (and that is how the law determines for such orders and conditions), how then to annul the determination of the heir with the argumentation in what is considered non-existent?
