Is there a tacit revocation of the will?

 

The case

 

A husband comes home and finds his wife cheating on a lover. In a fit of jealousy he takes a firearm and shoots both of them, then shoots himself. In the wake of fate, however, he first rested from his wounds, and his wife remained alive or died only after her husband. If the husband has left a will in favor of his wife, what will be the situation with this will? From the inheritance point of view, it is logical to assume that after his death the wife will receive the legacy by will, and after her death - the heirs of the law or the will of the latter. What if she left a will in favor of her lover? Logically - the legacy of the spouse will be obtained from the lover! Is this fair, however? Is it fair for a wife to inherit a will? Is not there reason to make the testamentary order caved? And in all cases where the lawyer himself attempts to murder or kills the heir of the will or the covenant, is there no ground for the annulment of the will?

 

Hrumka

 

Why not assume that attempted murder or murder by the testator in respect of the heir by law or the covenant (the untrue wife in the case) does not lead to a silent annulment of the testament? The actual text is missing. But there is also a lack of text that the deliberate destruction of the testament by the testator means the will to revoke the legal act. Once this action is deemed to be a will to annul the act of will as a one-sided transaction, without any text in the law in that sense, why not presume other actions of the testator who silently cancel the will?

 

Norms

 

Relevant Norms of the Inheritance Act

 

Art. 20. The testamentary order does not produce any action if the person in favor of which is made dies before the testator.

 

Art. 41. (1) The alienation, in whole or in part, of a testamentary estate shall invalidate the covenant regarding the expropriated property, even if the property is again acquired by the testator or when the alienation is destroyed for other reasons and not for a defect in the consent.

 

(2) The same shall apply when the testator redrafts or alters the property in question in such a way that it loses its former form and purpose.

 

Arguments

 

 The HH states that only the living person at the time of inheritance is able to obtain by law or will, by adding to the circle of possible heirs and those who have not yet been born unincorporated at that time. Art. 20 MG explicitly confirms this in the matter of inheritance by will. At the same time, in our narrative by definition the heir of the will or the covenant is alive to the discovery of the inheritance. But the heir itself attempted to kill the heir by will or the covenant. Here the ground for the annulment of the will, its edification stems from the testamentary will of the testator to liquidate the heir of the will or the covenant, from which an alleged will to revoke the legal act may be derived. Indeed, the dead can not inherit. Here the will is no less clearly manifested than the manifested will to annul the act upon the break of the will. In fact, the testator aims to induce the occurrence of the consequences under Art. 20 HH through its legal action - murder or attempted murder. The bequest itself as a special act of gratuitous property disposition for death in favor of one person is incompatible with the act of attempted murder or murder with respect to the heir or the covenant - an act of reproach and utterance as grossly as possible disrespect for the human person. At the same time, every legal act, any legal transaction, is carried out under a certain "vital prerequisite"; there is a definite life ground. With the hypothesis of our hunch, every life-ground of the will as a legal act should be considered to have fallen.

 

At the same time, there is reason to apply by analogy the law of Art. 41, para. 1 and para. 2 HN. Just as alienation as a legal act of the wills, an expressed will for separation from her, is presumed by the law of will to annul the will. Just as the processing of the thing by the testator is presumed by the law of will to annul the will. Similarly, in the attempt to murder or kill the heir by will or the covenant, the testator performs an act demonstrating the will to remove the "principal addressee" of the act - the benefactor.

 

Counter-arguments

 

Hrumata leads to a fall in the case-law and, in essence, to the extension of instances of inability to inherit under Art. 3 HM, by adding the law, which has no legal basis and leads to legal uncertainty. There is no gap in law at all to be applied by analogy to Art. 41H.

 

Such a solution will "reward" the assassin's murderer in a peculiar manner. He's really dead. However, we have always