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Alexandra Braun
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ABSTRACT: This chapter gives an overview of formality requirements for testamentary dispositions in Italian law, both from a historical and a comparative perspective. Italian inheritance law is deeply rooted in French law and the provisions concerning formalities therefore resemble those of the French Civil Code (as entered in to force in 1804). As well as ordinary wills, including holograph and notarial wills (whether public or secret), the Italian legal system also recognizes a number of special wills as well as international wills. This chapter examines the requirements for each of these different types of will, discusses their popularity and compares their pros and cons. It further outlines the impact of defects of form requirements on the validity of wills and considers the approach of the Italian courts to such defects. Finally, it shows that unlike in some other European countries, in Italy, the number of wills has decreased whilst ‘will-substitutes’ have become more and more popular.
University of Oxford Legal Studies Research Paper Series. 02/2012;
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Alexandra Braun
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ABSTRACT: When in 1989 the Italian Parliament decided to ratify the Hague Convention of 1985 on the Law Applicable to Trusts and on their Recognition, nobody could possibly have predicted the tremendous changes that it would bring to the Italian legal landscape in the years to come. Within the space of only a few years the trust became an institution used in Italian legal practice, and the word ‘trust’ a term familiar to Italian academics, lawyers, notaries and judges alike. This chapter examines the phenomenon of the trust interni, that is to say trusts that are placed in Italy but entirely regulated by foreign law. It analyses the development of the instrument in Italy, its application and main features, as well as the approaches taken by the judiciary, the tax authorities and the legislature.
University of Oxford Legal Studies Research Paper Series. 02/2012;
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Alexandra Braun
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ABSTRACT: In March 2009 two international research groups produced a draft of a Common Frame of Reference (DCFR) which included among others a book, Book X, on trusts. Book X suggests a comprehensive set of model rules aimed at providing Europe with a uniform trust law. This article offers a critical evaluation of Book X of the DCFR in an attempt to ascertain not only whether it provides a desirable device, but also why there is a book on trust law at all, given that the whole purpose of the exercise was to present a draft for the establishment of common principles on contract law. In order to do so, the paper first analyses the provisions of Book X in comparison with English law, the Hague Trusts Convention and the Principles of European Trust Law, so as to establish the nature of the trust proposed. Second, it probes the internal coherence of Book X and its compatibility with existing conflict of law rules and national private laws, both as an optional instrument or a set of mandatory rules.
University of Oxford Legal Studies Research Paper Series. 07/2011;
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Alexandra Braun
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ABSTRACT: In his 1997 FA Mann Lecture, ‘The Academic and the Practitioner’, the late Professor Birks spoke of the ‘rise of juristic literature to a law-making partnership with the judgments of the courts’. But what is the nature of this partnership and what are its characteristics? Do English judges and academics conceive of law-making as a joint enterprise? Can their relationship be described as a partnership between equals, or is one of them stronger or even dominant? Do they co-operate, or rather compete? And how does their relationship differ from the relationship judges and academics have in other legal systems, such as, for instance, France, Germany or Italy? This chapter addresses these questions by examining the nature of the partnership between the two branches of the legal profession from a comparative perspective. It primarily focuses on England and touches only briefly upon foreign experiences, in an attempt to highlight the main characteristics of the partnership between academics and judges in this country, and to identify possible trends. In doing so, it does not concentrate on any particular area of the law, but instead outlines how these two legal actors behave towards one another more generally.
University of Oxford Legal Studies Research Paper Series. 03/2011;
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Alexandra Braun
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ABSTRACT: Until recently English judgments were characterized by a dearth of references to academic legal writing. This is often ascribed to the existence of a professional convention preventing judges and counsel from citing living authors. While there is generally no doubt that such a convention did exist, it is not certain whether and to what extent it actually involved and affected legal academics and their role within the English legal system. This Article examines the claims that have been made about the genesis and the nature of the convention and at tempts to shed light on the true reasons for its emergence, as well as its impact on the status of legal writing in England and the relationship between judges and legal academics.
University of Oxford Legal Studies Research Paper Series. 01/2010;
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Alexandra Braun
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ABSTRACT: Mutual wills are wills made in substantially the same terms by two or more persons in pursuance of a previous agreement to testate in a specific way. This agreement is usually intended to remain unchanged over time. Mutual wills thus involve a conflict with a cardinal principle of the law of wills, ie. that a will can be revoked at any time before the death of the testator. Over centuries jurists and judges have engaged with this question in an attempt to find a satisfying compromise, but this was not an easy task and the difficulties eventually contributed to the abolition of mutual wills in many jurisdictions. This chapter is occupied with an assessment of the contribution of seventeenth-century Dutch legal science in this field, and its influence on the Legal Science of Europe. It outlines the development of the ius commune up to the eighteenth century, and then compares the evolution of the law from the eighteenth century onwards in some jurisdictions where mutual wills are still in use, such as Germany, England, Scotland and South Africa.
University of Oxford Legal Studies Research Paper Series. 01/2008;
