El derecho de autonomía de voluntad y el principio de formalidad en los actos que generan consecuencias jurídicas a partir de la sucesión intestada

Abstract

The right to autonomy of will of the parties constitutes for a good part of the doctrine a relatively new concept and sometimes considered of little doctrinal development, since it was from the French revolution and the development of new relations that a different conception of civil relations began to be created, based on the freedom of contracting. However, this freedom has been limited by legislation in order to guarantee legal security and has been relegated by normative formalities in some areas of the law. Just as the right of will has been established at the time of establishing a contractual relationship, a set of formalities have been developed for a very long time as a requirement for executing certain legal acts, so the same legislation has designed a whole system of protection for the contracting parties, which sometimes, as in the case of intestate succession, may be considered contrary to the autonomy of will. In this paper we will analyze the act of intestate succession as a characteristic act of notarial formality, its possible contravention of the autonomy of the will, and consequently, as an element generating limitations to the right to property. In this respect, an analysis will be made of whether the institution of succession and the formalities imposed by the notarial requirements could restrict the parties' right to autonomy of will and thus affect their rights.