Formation of the Principle of Freedom of Testament in Medieval Ukraine (9th – first half of the 17th century)

Abstract

The article examines the process of formation and development of the principle of freedom of testament in medieval Ukraine during the 9th – mid 17th centuries.
The author emphasizes that the principles of modern inheritance law have their own history of formation and development, among which the principle of freedom of testament stands out. It, like some principles of modern inheritance law, began to be formed and normatively consolidated in the territories of Ukraine during the medieval period (9th – first half of the 17th century).
It is established that the origins of the formation of the principle of freedom of testament date back to the end of the 9th – beginning of the 10th century, and the first written mention of it is contained in Art. 13 of the Treaty of Rus’ with Byzantium from 911. Subsequently, the relevant provisions of international treaties are found in Rus’ka Pravda. The author concludes that during the formation of ancient Ukrainian statehood, the principle of freedom of testament acquired a somewhat limited form compared to its modern understanding. However, the synergy of the norms of Ukrainian customary law and the canons of Christianity contributed to the expansion of the testator’s subjective will, and therefore the expansion of the content of the principle of freedom of testament.
It is determined that the foundations of the principle of freedom of testament, laid during the princely era and enshrined in the norms of Rus’ Pravda, continued to exist on Ukrainian lands during the following centuries until the adoption of three editions of the Lithuanian Statute. The norms of the latter gave preference to inheritance by will over inheritance by law of both paternal («batkivschyna») and maternal («materyzna») property. During the 16th century there was an expansion of the content of the testator’s subjective will when making a testament.
The author, taking into account the feudal type of medieval law and state, summarizes that the principle of freedom of testament contained certain restrictions, and they varied depending on the legal regime of property and the legal status of individual social strata. Certain categories of persons were deprived of the right to be testators. The corresponding legislative restrictions corresponded to the principles of building a feudal-hierarchical society, and therefore certain civil rights (including the freedom of testament) were restricted for certain categories of persons.