The socini caution: critical review of its current conception

Abstract

The application of the socini caution, when the testator has prohibited judicial intervention in his inheritance, will depend on the justified or unjustified nature of the contestation promoted by the legitimate successors. The actions of the legitimate succesors directed to combat the disposal and distributive scope of the testator incur that prohibition, giving rise to the application of the sanction foreseen in the Socini caution, as long as the testator’s will respects the legality. The causer cannot avoid this way the fulfillment of imperative rules, so that the prohibitions to litigate, when the legitimate successors challenge acts performed to the detriment of their legitimes, are illegal limitations that should not be admitted, since they are contestations based on the breach of law.

On the other hand, socini caution is a mechanism established by the testator to encourage the legitimate successors’ acceptance of the charges affecting their legitimes. Therefore, contrary to the criterion recently maintained by the Supreme Court, in the absence of legitimate successors, if the testator makes attributions to voluntary heirs depending on the acceptance of certain limitations, it is not possible to speak about a genuine Socini measure of caution, because there are not legitimes to be defended.