Anularea certificatului de moștenitor pe cale grațioasă. Comparație cu procedura judiciară contencioasă
Annulment of the certificate of succession by non-contentious means. Comparison with the contentious judicial procedure

Summary/Abstract: Decree No 40/1953 marked the transfer of the competence to settle the non-contentious succession procedure from the courts to the former State Notaries. This competence was also maintained by the new regulation of the activity of notaries public, the Law No 36/1995. However, neither the aforementioned Decree or the Law No 36/1995 in its original version acknowledged the possibility for interested persons to resolve amicably those disputes resulting from the issuance of the certificate of succession without complying with certain legal provisions that could lead to its annulment. Starting with 2013, the litigants benefit from a new legal way of declaring the nullity of the certificate of succession, the present study proposing its analysis and also the comparison with the other procedure already established for annulling the certificate of succession, the judicial procedure. The two procedures led to lengthy debates in practice, given the double controversy over the legal nature of the certificate of succession and the legal regime of conventional nullities, the legislator of the new Civil Code indicating only the possibility of declaring a nullity through conventional means, letting the doctrine define its effects. We have chosen as the focal point of this research treating these controversies born in the judicial and notarial practice, both encountering some difficulties, for example, in qualifying the type of nullity invoked according to the interest protected by the violated legal norm or establishing who can file an action for the annullment of the certificate of succession. These issues determined us to try to answer the questions that have risen in the judicial and notarial practice regarding the succession procedure and the annulment of the certificate of succession, trying through this research to offer them the most suitable answers, taking into account especially the spirit of the law, without neglecting its letter. Thus, we mainly analyzed who can file an action for the annulment of the certificate of succession, the issue of the extinctive prescription of this action, as well as the regime of the amicable nullity applicable when the heirs agree on declaring the nullity of the certificate of succession.

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