On the Conversion of an Absolutely Void Legal Act Mortis Causa in the Views of Professor Jan Gwiazdomorski

Abstract

The conversion of a void legal act is closely bound up with the general premise of civil law according to which, insofar as possible, an effort should be made to preserve the validity of a legal act once effected. In the dominant scholarly opinion, conversion is a distinctive juridical construct whereby the transformation of an invalid legal act into a valid one makes it possible to realise the practical objective that the parties sought to attain when undertaking the act. The object of conversion may, in principle, be any existing absolutely void legal act, including unilateral acts, whether inter vivos or mortis causa. Both doctrine and case law, in their prevailing view, have accepted the possibility of converting an invalid will. This tendency accords with the aforesaid broader premise and with the overriding aim of avoiding the extinction of the testator’s intent. The point acquires special significance with respect to wills, since in the case of mortis causa legal acts it is impossible for the party who performed the original act, rendered absolutely void, to repeat it. The conversion of a will thus aims at realising the testator’s true intent and accordingly represents an application of the intent theory. Its legitimacy rests both upon strictly juridical argumentation and upon considerations of a social nature. While the aim so defined may seem prima facie sound, the conversion of an invalid will is fraught with theoretical difficulty. Nor is this the sole reason why the doctrine has found determined opponents. One of its prominent critics was Professor Jan Gwiazdomorski. He offered a thorough critique of the position that the conversion of an invalid will is admissible when the cause of invalidity lies in a breach of the formal requirements governing wills.