LA RESTITUCIÓN DE BIENES HEREDITARIOS AL HEREDERO: CUESTIONES CONTROVERTIDAS SOBRE LA ACCIÓN DE PETICIÓN Y LAS RELACIONES ENTRE EL HEREDERO APARENTE Y EL REAL.

Abstract

Action to be declared heir to an estate may be taken by any heir against any person claiming to be heir (possessor pro herede) or any person possessing the estate without putting forward any title (possessor pro possessore). Action of this sort is aimed at obtaining acknowledgement of the plaintiff's capacity as an heir and the return of any assets from the residue of the decedent's estate that remain in the possession of the defendant, whether the defendant holds some title or no title at all. Because our Civil Code does not expressly regulate actio petitio hereditatis (It just touches lightly on the subject in articles 192, 1016 and 1021), the role played by the Supreme Court and lower courts is especially important. The courts have equipped petitio hereditatis with a system of rules that fills the gaps in the law, a system that is absolutely necessary in order to grasp the essence of the concept, its end, the consequences of exercising it and, in short, to make petitio hereditatis a living, legally effective mechanism.