“Legal Reservations for the Category of Heirs Incapability to Work, Issues Encountered on the Manner of Interpretation of Substantive Law on the Criteria that Must Complete Incapability Heir for Work to Be Considered as A Category Protected by Legal Reserve”

Brunela Kullolli and Blerina Muskaj
“Aleksander Moisiu” University of Durres

Abstract

ABSTRACT My contribution to the present conference shall address this topic: “Analysis of the conditions that the heir incapability for work must meet, to be considered or not subject the legal reserve. The review of practice concluded that of the attitude the court regarding conditions required by the heir incapability for work, to be considered that is protected from legal reserves, is not unified. Predictions are the same legal and interpreted in different ways. The reason for the selection of this topic is the evidence of the main problems a legal reserve for the heir's incapability for work encountered during practice pre-professional and in completed court cases and presentation of attitude regarding the way how should this institute be interpreted”. -The first part gives a concise picture of the list of issues and acts under consideration and a description of the facts. - The second part focuses on the analysis of the legal reserve institute regarding the incapability of heirs to work. - The third is the part that deals with the comparative analysis of practical cases. It is noticed that in some cases the object of treatment is not properly understood by the institute of legal reserve regarding the incapable heirs. The legal reserve constitutes a restriction of the testator's freedom to dispose of the property, to protect a certain category of legal heirs. Being a restrictive provision it should be interpreted in such a way as not to expand the circle of people intended to be protected by it as in principle this restriction is an exception to the rule and would pass a restriction of freedom and the right of the testator, beyond the legal provisions. Contradictory interpretations of the courts also because of uncertainties which create the above provisions, especially article 379, therefore I consider that it is time for the Supreme Court to invest through unifying decisions that would unify the positions of the courts on this issue.

Presentation