PART I Harmonization of Succession Law in Europe: The Current Debate

Transcription

1 CONTENTS Preface Contents Abbreviations Authors V vii xviii xxvi PART Harmonization of Succession Law in Europe: The Current Debate CHAPTER i Need and Opportunity of Convergence in European Succession Laws Walter Pintens 1 ntroduction 5 Need for Convergence in European Substantive Succession Laws 6 Opportunity of Convergence in European Substantive Succession Laws 8. Spontaneous Harmonisation 8.. The Statutory Portion of the Surviving Spouse 8.1. Compulsory Portion of Children 1.1. Conclusion 17. nstitutional Unification Achievements 19.. Promotion of What We Have 1. Legal Scholarship 1 Conclusions CHAPTER Testamentary Freedom or Forced Heirship? Balancing Party Autonomy and the Protection of Family Members Andrea Bonomi 5 1 ntroductory Remarks 7 The Connecting Factor of the Last Habitual Residence of the Deceased 9 The Choice of Applicable Law 1 Agreements as to Succession 5 The Public Policy Exception 6 6 Final Remarks 8

2 THE LAW OF SUCCESSON! TESTAMENTARY FREEDOM PART New Trends in Catalan Succession Law CHAPTER Between Tradition and Modernisation: A General Overview of the Catalan Succession Law Reform Esther Arroyo i Amayuelas - Miriam Anderson ntroduction The Diversity of Private Law Systems in Spain Catalonia: From the 1960 Compilation to a Civil Code An Overview of the Law of Succession in Book V of the Catalan Civil Code 5 The Law of Succession and Legal Tradition: New Rules for Old Principles 8 The Appointment of an Heir s a Prerequisite for the Validity of a Will 9 The Heir As a Universal Successor 5 1 Nemo Pro Parte Testatus, Pro Parte ntestatus Decedere Potest 51 Semel Heres, Semper Heres 5 The mpact of Social and Economic Changes on the Law of Succession 5 Freedom of Testation and Respect for the Testator's Wishes 5 New Grounds for Unworthiness and a Longer List of Victims of Reprehensible Conduct 55 A New Ground for Disinheritance: The Lack of Normal Family nteraction Attributable to the Forced Heir 56 The Protection of the Elderly Testator 57 The Adaptation of the Law of Succession to New Family Models 58 The Equalization of Spouses and Cohabitants 58 mprovements in the Position of the Surviving Spouse or Cohabitant 60 Succession within the Family Business: The Modernization of nheritance Agreements 65 Changes within Tradition: The ncomplete Reform of the Forced Share 68 Conclusions 71 CHAPTER Testamentary Freedom and ts Limits Esteve Bosch Capdevila ntroduction 75 The Testator's Will as the Supreme Law of Succession 75 Protecting Testamentary Freedom 75 The Types of Limits to Testamentary Freedom 75

3 CONTENTS Limits Derived from the Testator's Wishes 77.1 Provisions in a Will Aiming to Prevent Future Testamentary Modification or Revocation 77. Ad Cautelam Clauses: Do They Protect or Limit Testamentary Freedom? The Admission of Ad Cautelam Clauses in the Catalan Legal Tradition and in the Precedents of Book V of the CC Cat 78.. The Silence of Book V of the CC Cat Regarding the Ad Cautelam Clauses 79 The Limits mposed by a Third Party: The Problems Caused by Captatorias nstitutions 80 The Legal Limits to the Content of Testamentary Provisions 8.1 Limits that Affect the Conditions that a Testator Can mpose Limits Deriving from the Principle Semel Heres Semper Heres 8.1. Limits Derived from Certain Conditions Being Unlawful 8. Limits Affecting Specific Clauses The ncompatibility between Testate and ntestate Heirs and Testamentary Freedom 86.. The Limits mposed on Fideicommissum 86. The Lineage Principle 87. Discriminatory Clauses 87 CHAPTER 5 Freedom of Testation, Compulsory Share and Disinheritance Based on Lack of Family Relationship Antoni Vaquer Aloy 89 1 Preliminary Remarks 91 Reforms of the Compulsory Share in European Laws of Succession: No Abrogation, Only Reduction 9 A Weaker Compulsory Share in Catalonia 9 The New Gorund for Disinheritance in Art e of the Catalan Civil Code 95.1 Subsistence of the Compulsory Share, with Widening Grounds for Disinheritance 95. Behaviour-Based Succession Systems 95. Compulsory Share, Disinheritance and Descendants' Behaviour in Catalan Law 98 5 Concluding Remarks 10

4 THE LAW OF SUCCESSON: TESTAMENTARY FREEDOM CHAPTER 6 PART Freedom of Testation Versus Freedom to Enter nto Succession Agreements and Transaction Costs Susana Navas Navarro 105 ntroduction 107 The Legislator's Choice: An nheritance Agreement Prevails Over and s Sometimes ncompatible With a Will 109 The Deceased's Choice: Succession Within the Family Business 11 Preliminary Remarks i«the Family Estate: From "Homestead" to "Business"? 115 Economic Costs Derived from Entering into Succession Agreements "7 Transaction Costs and the Choke of the Successor 118 Economic Costs Derived from the Deceased's Change ofmind 10 Possible "Efficient" nstruments for Succession Within the Family Business 1 Final Conclusions 15 National Perspectives on the law of Succession in the 1 st Century CHAPTER ii Freedom of Testation in England and Wales Roger Kerridge 19 ntroduction 11 History 11 Trusts as a Restraint on Freedom of Testation 1 The Mortmain Act 16 The 'Construction' (or nterpretation) of Wills 17 The Pla and Puncernau Case Viewed from England 19 Contracts to Leave Property by Will, Proprietary Estoppel and Mutual Wills 1 Validity of a Contract to Leave Property by Will 1 Proprietary Estoppel 1 Mutual Wills 1 Freedom of Testation in England in the Twentieth and Twenty First Centuries 15 What Problems Are There Under the 1975 Act? 18 Particular Problems with Children and Step-children 151 Reform of the 1975 Act 151

5 CONTENTS CHAPTER 8 Law of Succession and Testamentary Freedom in Germany A. Röthel ntroduction T57 Testamentary Freedom and Public Policy ( 18 BGB) Conditional nheritance: "Undue nfluence" on Heirs? 158. Wills in Favour of Disabled People or of People in Need versus Social Welfare 159. The "Rule Against Perpetuities" 159. Particular Testamentary Prohibitions 161 Testamentary Freedom and the Compulsory Portion ( 0 ff. BGB) 16.1 Overview of the Basic Concept 16. Reforms in the Law on Compulsory Portion (009) ncrease of Compulsory Portions Due to nter Vivos Donations ( 5 BGB latest amendment) 16.. Deferment ( 1a BGB latest amendment) 16.. Deprivation of the Compulsory Portion ( BGB) 16 Testamentary Freedom and nheritance Agreements Overview of the Applicable Law 165. Reform Debate Summary: Requirements of Freedom of Testation Fit for the Present Day 166 CHAPTER 9 The Law of Succession in Hungary Zoltan Csehi ntroduction 169 Freedom of Testation versus Ordre Public Restrictions mposed by Human Rights and Fundamental Rights i Preliminaries on Human Rights The Modern Hungarian Constitution The Practice of the Constitutional Court Concerning Succession 17. Public Law Restrictions 175. Private Law Restrictions 175 Freedom of Testation versus Legally Granted Hereditary Rights Preliminaries on Compulsory Share 177. Functions of the Compulsory Share 177. The Rules on Compulsory Share Beneficiaries Extent 18

6 THE LAW OF SUCCESSON: TESTAMENTARY FREEDOM.. Basis.. Facts Affecting the Allocated Share Payment l8..6 Obligor Collisions with Other Rights The Future of the Compulsory Share 18 Freedom of Testation versus Freedom to Enter into nheritance Agreements 18.1 Contracts Regulated Outside the Law of Succession Support Contract Life nsurance Savings Deposits Copyright 186. Contracts Within the Law of Succession nheritance Contracts Donatio Mortis Causa Contract Among Descendants on Anticipated nheritance De Lege Ferenda 190 l8 CHAPTER 10 Freedom of Testation in taly Andrea Fusaro Freedom of Testation and Ordre Public Freedom To Make a Will: Different Types of Wills Ordre Public i The Prohibition of ndefinite Settlements Conditions mposed on the Heir 19 ntestacy 19 Freedom of Testation and Hereditary Rights Legally Granted Forced Share 195. Subjects 196. Quotas and Rights 196. Calculation of the Forced Share The Reduction of Testamentary Dispositions and Donations The Circulation of Assets 197 Freedom of Testation versus Freedom to Enter into nheritance Agreements 198 Annex: Draft of a Family Agreement 00

7 CONTENTS CHAPTER i. - 5 CHAPTER 1 Acquisition of Property by Succession in Dutch Law. Tradition between Autonomy and Solidarity in a Changing Society J. Michael Milo 0 ntroduction 05 Principles and Developments in Dutch Succession Law 05 Principles and Other Determining Factors 05 Developments in Precodified Dutch Law 08 From the First Codification Onwards 11 Contemporary Succession Law in General 1 Succession and Matrimonial Property Law 1 Succession, Systematization, and Acquisition of Property 15 ntestate Succession 17 Testamentary Dispositions and Restrictions 18 Position of the Spouse and the Children ntestate Positions of Spouse and Children Testate Position of Spouse and Children 5 Forced Heirship 6 Concluding Remarks 6 The Norwegian Approach to Forced Share, the Surviving Spouse's Position and rrevocable Wills Peter Hambro ntroduction The Forced Share nheritance The Contents of Wills The Position of the Surviving Spouse rrevocable Wills Other rrevocable nstruments nsurance Policies Pre- and Postnuptial Agreements CHAPTER Restraints on Freedom of Testation in Scottish Succession Law Eric Clive 1 Underlying Values Freedom of Testation and Protection of Certain Claimants 5 Fixed Share for Spouse or Civil Partner 6 Fixed Share for ssue 9 Protection of Cohabitants 51 Other Restraints on Freedom of Testation 5

8 THE LAW OF SUCCESSON: TESTAMENTARY FREEDOM CHAPTER 1.1. CHAPTER nheritance Tax 5 Limitations on Accumulation of ncome 5 Limitations on Future Liferents 55 Purposes Otherwise Contrary to Public Policy 56 Freedom of Testation in Slovenia Suzana Kraljic 57 ntroduction 59 Freedom of Testation 60 Ordre public 60 Forced Share and Exheredatio 60 Especial Limitations for Agricultural Holdings 65 nheritance Agreements 67 Freedom of Testation, Legal nheritance Rights and Public Order under Spanish Law Sergio Camara Lapuente 69 Overview 71 Limits on the Freedom to Dispose Mortis Causa in the Spanish Civil Code and in the Autonomous Communities 71 Legal Frame 71 Description of the ex lege Rights in Favour of the Deceased's Family 7 Assessment of the Main Legislative Trends 78 Strengthening the Legal Position of Surviving Spouses 78 Legal Rights in Favour of a Cohabitant 79 Scarce Enlargement of the Grounds of Disinheritance and Unworthiness 81 Special Protection for Certain Social Groups 8 Material Freedom of Testation 8 The Current Debate Regarding the Suppression or Modification of the Forced Share ('Legitima') 8 Arguments in Favour of Forced Shares ('Legitimas') 8 Arguments in Favour of Testamentary Freedom 85 Proposed Solutions 86 Channels for Relaxation without Eliminating the Forced Share 89 Reforms Already mplemented in the Spanish Civil Code 89 Other Reforms that Might be Suitable in View of Comparative Law (Both nterregional and nternational) 90 Other Possible Enlargements of Material Freedom of Testation 9

9 Formal Freedom of Testation 9.1 Testamentary Forms 9. nheritance Agreements, Joint Wills and Other Mortis Causa nstruments 9. 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') 96. Notaries' Plea for Further Reforms 99 5 Freedom of Testation and Public Order s the Forced Share a Matter of Public Order? Does the Spanish Constitution Guarantee the Forced Share? Scope of Spanish Public Order in nternational Succession Public Order and Fraud to the Law of Succession 0 Bibliography 08