Comparative aspects of testamentary freedom in legislation of Kosovo and Albania

AuthorMuharrem Faiku - Shanoela Zaçe
Pages59-64
European Journal of Economics, Law and Social Sciences
IIPCCL Publishing, Graz-Austria
Vol. 4 No. 1
January, 2020
ISSN 2519-1284
Acces online at www.iipccl.org
59
Comparative aspects of testamentary freedom in legislation of Kosovo and
Albania
Prof. Ass.Dr. Muharrem Faiku
Ass. Shanoela Zaçe
Abstract
The right to dispose of property by will is a right which is applied by most legislatures in the
world. It has been recognized since the Roman law, but also it was recognized later by every
applied law.
Even though the right to dispose of property by will is a strictly personal right of the decujus
and is related to the will of decujus, this will is not entirely unlimited. There are legal provisions
which set limits to the testator’s will.
This research aims to analyze whether the testator has the right to dispose of property by will
to persons of his own choice. Speci cally, the aim of this paper is to present the limitations
that a testator has on the right to dispose of property by his/her will. Do these provisions limit
the purpose of the testament, not allowing a person to decide who they want their property
to go to when they die? Are these limitations justi ed or do they violate the individual’s
personal right to determine the destination of his/her property? This research compares the
testamentary freedom of decujus according to the legislation of Kosovo and Albania, but also
analyzes the legal reserve and the compulsory parts an integral part of the respective systems.
Keywords: testamentary freedom, decujus, will, legal reserve, compulsory part.
Introduction
The foundation of ownership brought to life the subjects’ right to determine the
destiny of their property a er their death. Death is a legal fact of the acquisition
of the ownership by the act of mortis causa, the consequences of which occur a er
the death of the person. Di erent systems in the world were based on the Roman
law when applying the testamentary succession. However, other legal systems such
as the old legal system of Albania, Germany and O oman’s law, did not apply the
right of inheritance, restricting the decedent from his/her rights (Biçoku, 2011, 144).
According to the Code of Lek Dukagjini, the will as a form of testamentary succession
was not accepted, but disposition of property by will, would be allowed only if the
property was donated to the church with the approval of the kin. This property
would be donated to the church for “the spirit of the decedent” and it could be a
farm, garden or vineyard.1
The right to dispose of property by will was also sanctioned in the Roman law.
The Latin term for will was Testamentum and according to Ulpiani derives from the
word Testator which means “making a solemn statement according to one’s will”.2
1 Code of Lekë Dukagjinit, chapter 9, article 39. The article can be found on: http://agrbes.freehostia.com/
KanuniiLekeDukagjinit.pdf
2 https://www.enkeledaolldashi.com/wp-content/uploads/2019/02/12_trashegimia.pdf

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