The Law of Succession, which has been traditionally confined to domestic limits, is becoming a frequent topic of discussion in international forums, due to the increasing mobility of people and assets. Freedom of testation is in the centre of all initiatives tending to harmonize or at least approximate legislations in this field, even if, to date, efforts in this direction have focused on international private law. In April 2010, an international conference was held in Barcelona, where the scope of freedom of testation was checked against the limitations imposed by human rights, by domestic rules granting forced shares and other rights to the deceased's next of kin, and by provisions dealing with inheritance agreements. The conference stemmed from the new Catalan legislation and proceeded to cover other national systems. These reports, together with other contributions by experts from different countries commissioned specially for this publication, address, as well as Continental domestic regulations, the English common law system and Eastern European solutions. A general overview on the need and opportunity of convergence in the law of succession and on the proposed EU Regulation on Successions and Wills, as an initial move towards harmonization, are broached from the outset; the diversity of solutions that this volume presents confirms its convenience.
Preface
Contents
Abbreviations
Authors
Part I Harmonization of Succession Law in Europe: The Current Debate
Chapter 1 Need and Opportunity of Convergence in European Succession Laws
Walter Pintens
1 Introduction
2 Need for Convergence in European Substantive Succession Laws
3 Opportunity of Convergence in European Substantive Succession Laws
3.1 Spontaneous Harmonisation
3.2 Institutional Unification
3.3 Legal Scholarship
4 Conclusions
Chapter 2 Testamentary Freedom or Forced Heirship? Balancing Party Autonomy and the Protection of Family Members
Andrea Bonomi
1 Introductory Remarks
2 The Connecting Factor of the Last Habitual Residence of the Deceased
3 The Choice of Applicable Law
4 Agreements as to Succession
5 The Public Policy Exception
6 Final Remarks
Part II New Trends in Catalan Succession Law
Chapter 3 Between Tradition and Modernisation: A General Overview of the Catalan Succession Law Reform
Esther Arroyo Amayuelas – Miriam Anderson
1 Introduction
1.1 The Diversity of Private Law Systems in Spain
1.2 Catalonia: From the 1960 Compilation to a Civil Code
2 An Overview of the Law of Succession in Book IV of the Catalan Civil Code
3 The Law of Succession and Legal Tradition: New Rules for Old Principles
3.1 The Appointment of an Heir Is a Prerequisite for the Validity of a Will
3.2 The Heir As a Universal Successor
3.3 Nemo Pro Parte Testatus, Pro Parte Intestatus Decedere Potest
3.4 Semel Heres, Semper Heres
4 The Impact of Social and Economic Changes on the Law of Succession
4.1 Freedom of Testation and Respect for the Testator’s Wishes
4.2 The Adaptation of the Law of Succession to New Family Models
4.3 Succession within the Family Business: The Modernization of Inheritance Agreements
5 Changes within Tradition: The Incomplete Reform of the Forced Share
6 Conclusions
Chapter 4 Testamentary Freedom and Its Limits
Esteve Bosch Capdevila
1 Introduction
1.1 The Testator’s Will as the Supreme Law of Succession
1.2 Protecting Testamentary Freedom
1.3 The Types of Limits to Testamentary Freedom
2 Limits Derived from the Testator’s Wishes
2.1 Provisions in a Will Aiming to Prevent Future Testamentary Modification or Revocation
2.2 Ad Cautelam Clauses: Do They Protect or Limit Testamentary Freedom?
3 The Limits Imposed by a Third Party: The Problems Caused by Captatorias Institutiones
4 The Legal Limits to the Content of Testamentary Provisions
4.1 Limits that Affect the Conditions that a Testator Can Impose
4.2 Limits Affecting Specific Clauses
4.3 The Lineage Principle
4.4 Discriminatory Clauses
Chapter 5 Freedom of Testation, Compulsory Share and Disinheritance Based on Lack of Family Relationship
Antoni Vaquer Aloy
1 Preliminary Remarks
2 Reforms of the Compulsory Share in European Laws of Succession: No Abrogation, Only Reduction
3 A Weaker Compulsory Share in Catalonia
4 The New Gorund for Disinheritance in Art. 451-7.2 e of the Catalan Civil Code
4.1 Subsistence of the Compulsory Share, with Widening Grounds for Disinheritance
4.2 Behaviour-Based Succession Systems
4.3 Compulsory Share, Disinheritance and Descendants’ Behaviour in Catalan Law
5 Concluding Remarks
Chapter 6 Freedom of Testation Versus Freedom to Enter Into Succession Agreements and Transaction Costs Susana Navas Navarro
1 Introduction
2 The Legislator’s Choice: An Inheritance Agreement Prevails Over and Is Sometimes Incompatible With a Will
3 The Deceased’s Choice: Succession Within the Family Business
3.1 Preliminary Remarks
3.2 The Family Estate: From “Homestead” to “Business”?
3.3 Economic Costs Derived from Entering into Succession Agreements
3.3.1 Transaction Costs and the Choice of the Successor
3.3.2 Economic Costs Derived from the Deceased’s Change of Mind
3.4 Possible “Efficient” Instruments for Succession Within the Family Business
4 Final Conclusions
Part III National Perspectives on the Law of Succession in the 21st Century
Chapter 7 Freedom of Testation in England and Wales
Roger Kerridge
1 Introduction
2 History
3 Trusts as a Restraint on Freedom of Testation
4 The Mortmain Act
5 The ‘Construction’ (or Interpretation) of Wills
6 The Pla and Puncernau Case Viewed from England
7 Contracts to Leave Property by Will, Propietary Estoppel and Mutual Wills
7.1 Validity of a Contract to Leave Property by Will
7.2 Proprietary Estoppel
7.3 Mutual Wills
8 Freedom of Testation in England in the Twentieth and Twenty First Centuries
9 What Problems are there under The 1975 Act?
10 Particular Problems with Children and Step-children
11 Reform of the 1975 Act
Chapter 8 Law of Succession and Testamentary Freedom in Germany
A. Röthel
1 Introduction
2 Testamentary Freedom and Public Policy (§ 138 BGB)
2.1 Conditional Inheritance: “Undue Influence” on Heirs?
2.2 Wills in Favour of Disabled People or of People in Need versus Social Welfare
2.3 The “Rule Against Perpetuities”
2.4 Particular Testamentary Prohibitions
3 Testamentary Freedom and the Compulsory Portion (§§ 2303 ff. BGB)
3.1 Overview of the Basic Concept
3.2 Reforms in the Law on Compulsory Portion (2009)
4 Testamentary Freedom and Inheritance Agreements
4.1 Overview of the Applicable Law
4.2 Reform Debate
5 Summary: Requirements of Freedom of Testation Fit for the Present Day
Chapter 9 The Law of Succession in Hungary
Zoltán Csehi
1 Introduction
2 Freedom of Testation versus Ordre Public
2.1 Restrictions Imposed by Human Rights and Fundamental Rights
2.2 Public Law Restrictions
2.3 Private Law Restrictions
3 Freedom of Testation versus Legally Granted Hereditary Rights
3.1 Preliminaries on Compulsory Share
3.2 Functions of the Compulsory Share
3.3 The Rules on Compulsory Share
4 Freedom of Testation versus Freedom to Enter into Inheritance Agreements
4.1 Contracts Regulated Outside the Law of Succession
4.2 Contracts Within the Law of Succession
5 De Lege Ferenda
Chapter 10 Freedom of Testation in Italy
Andrea Fusaro
1 Freedom of Testation and Ordre Public
1.1 Freedom To Make a Will: Different Types of Wills
1.2 Ordre Public
2 Intestacy
3 Freedom of Testation and Hereditary Rights Legally Granted
3.1 Forced Share
3.2 Subjects
3.3 Quotas and Rights
3.4 Calculation of the Forced Share
3.5 The Reduction of Testamentary Dispositions and Donations
3.6 The Circulation of Assets
4 Freedom of Testation versus Freedom to Enter into Inheritance Agreements Annex: Draft of a Family Agreement
Chapter 11 Acquisition of Property by Succession in Dutch Law. Tradition between Autonomy and Solidarity in a Changing Society
J. Michael Milo
1 Introduction
2 Principles and Developments in Dutch Succession Law
2.1 Principles and Other Determining Factors
2.2 Developments in Precodified Dutch Law
2.3 From the First Codification Onwards
3 Contemporary Succession Law in General
3.1 Succession and Matrimonial Property Law
3.2 Succession, Systematization, and Acquisition of Property
3.3 Intestate Succession
3.4 Testamentary Dispositions and Restrictions
4 Position of the Spouse and the Children
4.1 Intestate Positions of Spouse and Children
4.2 Testate Position of Spouse and Children
4.3 Forced Heirship
5 Concluding Remarks
Chapter 12 The Norwegian Approach to Forced Share, the Surviving Spouse’s Position and Irrevocable Wills
Peter Hambro
1 Introduction
2 The Forced Share Inheritance
3 The Contents of Wills
4 The Position of the Surviving Spouse
5 Irrevocable Wills
6 Other Irrevocable Instruments
6.1 Insurance Policies
6.2 Pre- and Postnuptial Agreements
Chapter 13 Restraints on Freedom of Testation in Scottish Succession Law
Eric Clive
1 Underlying Values
2 Freedom of Testation and Protection of Certain Claimants
2.1 Fixed Share for Spouse or Civil Partner
2.2 Fixed Share for Issue
2.3 Protection of Cohabitants
3 Other Restraints on Freedom of Testation
3.1 Inheritance Tax
3.2 Limitations on Accumulation of Income
3.3 Limitations on Future Liferents
3.4 Purposes Otherwise Contrary to Public Policy
Chapter 14 Freedom of Testation in Slovenia
Suzana Kralji
1 Introduction
2 Freedom of Testation
2.1 Ordre public
2.2 Forced Share and Exheredatio
3 Especial Limitations for Agricultural Holdings
4 Inheritance Agreements
Chapter 15 Freedom of Testation, Legal Inheritance Rights and Public Order under Spanish Law
Sergio Cámara Lapuente
1 Overview
2 Limits on the Freedom to Dispose Mortis Causa in the Spanish Civil Code and in the Autonomous Communities
2.1 Legal Frame
2.2 Description of the ex lege Rights in Favour of the Deceased’s Family
2.3 Assessment of the Main Legislative Trends
3 Material Freedom of Testation
3.1 The Current Debate Regarding the Suppression or Modification of the Forced Share (‘Legítima’)
3.2 Proposed Solutions
3.3 Channels for Relaxation without Eliminating the Forced Share
3.4 Other Possible Enlargements of Material Freedom of Testation
4 Formal Freedom of Testation
4.1 Testamentary Forms
4.2 Inheritance Agreements, Joint Wills and Other Mortis Causa Instruments
4.3 Delegation of the Power to Make a Will, Appointment of Representatives with the Power to Choose Beneficiaries or to Distribute the Estate, or Appointment of Trustees (‘fiducia sucesoria’)
4.4 Notaries’ Plea for Further Reforms
5 Freedom of Testation and Public Order
5.1 Is the Forced Share a Matter of Public Order?
5.2 Does the Spanish Constitution Guarantee the Forced Share?
5.3 Scope of Spanish Public Order in International Succession
5.4 Public Order and Fraud to the Law of Succession
Bibliography
