Legitime, vulgar substitution, growth and interpretation of testaments (about the Resolution (1st) of the Dirección General de Seguridad Jurídica y Fe Pública of 18th January 2022)

Abstract

The legitime is a “brake” on the free disposal (inter vivos and mortis causa) of one's own property and rights. But this limitation is foreseen for the benefit of some people, who are the improperly called "forced heirs". How the limitation that the legitimate implies, translates into benefit to the “forced heirs”, is a question that allows us to conclude that the abintestato succession is the regulation that gives the "positive support" to the legitimate one as a dispositive "limitation", in order to materialize that benefit. There is a strong institutional relationship between these two figures.             On this basis, when the testator introduces in his will a vulgar substitution clause, by which he intends to replace his “forced heirs”, we must ask ourselves if this is possible, and how it conflicts with the "qualitative intangibility of the legitimate", ordered by article 813 of the Civil Code, or with the pseudo-growth that regulates the article 985 of the same Code.             The analysis of this Resolution is very interesting and didactic, because an interesting interpretative problem of the will is also introduced, which is what ends up being the key argument for the resolution of the dispute, and that must be analyzed.