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Litigation
A brief remark on litigation: In our practice we frequently experience that through long negotiations results have been achieved which are not in keeping with the legal situation. For this reason it is part of our mission statement to represent our clients in a compelling manner through litigation and enforcement of decisions wherever necessary.
That is to say that the law does rely on the initiative of its citizens: If one does not defend oneself (or attack where appropriate), one will not receive justice automatically and by itself.
A telling example for this characteristic trait of the legal system are legal portions in the field of inheritance law: If the person entitled to a mandatory legal portion does not retain counsel and does not assert his or her claim to such legal portion, it will become time-barred by the statute of limitations in a relatively short period of time.
Some will respond to this that this is all but unknown – but in the case where I was concerned, there was no estate or inheritance to speak and therefore retaining counsel not indicated. Even in such a situation retaining counsel may reasonable, however, because donations or gifts made by the person deceased in his or her last ten years may be reclaimed into the estate from the recipient.
Real life examples
To illustrate what this means in the practical result you may want to look at the case example on the right.
Through this example one can see that contacting counsel may be advantageous – even if the person concerned has thought otherwise.
If the law draws on the initiative of a country's citizens, one should not hesitate to use a court's help if the adversary does not negotiate at all or aims for delaying the enforcement of claims.
This is because legal rules show their effectiveness in litigation – if litigation is not carried out where appropriate, the best legal rule will not produce practical results. Contract clauses that have been developed in contract drafting practice remain frequently untested for a long time and will reveal their validity (or invalidity) only in a court proceeding.
Furthermore, litigation has – as can be read in a widely used source on civil litigation – the task to appease. Only the fact that litigation or a measure of enforcement is imminent will oftentimes foster agreement even between parties where agreement seemed out of reach.
Litigation and enforcement is counsel's sword which he wields in the best interest of the client.
Example: Donation to a third party before the death of a testator
S, son of V who has recently passed away, is entitled to a mandatory legal portion of V's estate. V has appointed, as sole heir, his last companion L. V has not left anything aside from his personal effects, but rather all the liabilities he left are just about covered by the assets.
Seven years before his death, V has given to an expensive sports car and jewelry to his paramour G at the time as gifts.
Counsel's appreciation: In such a situation S may, as a first step, claim full disclosure of the extent of the donations. If the exact extent of the donations is known, the mandatory legal portion is calculated as if the donations would still be part of the estate.
If S would not have had the idea on his own that the donations may play a role for his legal portion, he would be best advised to seek and retain counsel as soon as possible after the death of V. Informed counsel will discuss these issues with him and will conduct inquiries wherever appropriate.
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