Indefeasible Family Rights: A Comparative View on the Restrictions of Testamentary Freedom
| Pages | 211-236 |
| DOI | 10.3366/elr.2018.0483 |
| Published date | 01 May 2018 |
| Date | 01 May 2018 |
| Author |
For many, family is the most basic structure of their social life. Sometimes the social, legal and economic affairs of family members become irreversibly intertwined, making it difficult to disentangle the web of legal and social connections. In consequence, providing for family members, even after one's death, is often regarded as a moral duty. The importance of family has thus resonated in the legal framework regarding the distribution of property after one's death. In contrast, no two family situations are alike, and the social and economic arrangements vary accordingly. Property is not owned by families, but by individuals who are free to transfer it according to their wishes. It seems most natural also to provide the possibility to decide the distribution of one's property after death. As a result, most European legal systems feature both the power to testate and some variance of family participation that cannot be defeated by a last will.
However, the social and moral conceptions of family life have changed and continue to change at a dramatic rate. The law must keep up. As a result, the question of family participation has been raised repeatedly in modern legal practice. A very recent example is the succession reform in Scotland leading to the Succession (Scotland) Act 2016, which has been the arena for much debate over the timeliness of legal rights.
The tradition of family participation and the demands of a modern society thus create a first layer of tension within the conception of family rights. The first part of this article will trace the development of the current legal principles in Scotland, Germany and England. The legal systems in Germany and Scotland have thus far avoided drastic changes. Although ancient Rome – at least at one time – knew (practically) unfettered freedom to testate,
The second part of this article will then analyse how the three legal systems resolve the competing principles of familial obligations and testamentary freedom. It is thereby necessary to overcome the difficulty of aligning somewhat distinct conceptions that functionally address similar issues. Protection of family members in Scotland and Germany alike is currently provided by an entitlement to a fixed share. In that respect, they have sometimes been summed up as concepts of ‘forced heirship’.
Especially in Scotland and Germany, the traditional conception of family rights still dominates the current legal situation. In the Scots succession reform, legal rights were a controversial topic;
Until its reform in 1964, Scots succession law was comprised of feudal traditions, customary law and the practice of the church, which dated back several centuries.
The rules that applied to heritable property differ from those applicable to movables.
It became evident that, after several centuries, the law of succession as a whole was in dire need of reform.
The original idea of reform was to apply legal rights uniformly to heritable and moveable property.
Since the reform in 1964, the legal rights of children and spouses have remained largely unchanged. However, slight alterations have been made to provide for civil partners and for non-marital children.
The question of legal rights was revisited in the Commission Report of 2009.
The present law in Germany is shaped by the coming into force of the Bürgerliche Gesetzbuch (BGB) on 1 January 1900.
The German legal tradition entailed a concept of family property which, in its most strict form, belonged to a kin-group related by blood, excluding marriage ties.
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