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This chapter explores the issues of freedom of testation and the age of testator in relation to the law of succession, discussing the factors associated with the capacity to execute a last will, including mental incapacity, centralised organisation of wills, and infirm or aged testators. It compares the relevant provisions of the South African and Roman-Dutch law and highlights some aspects of the strange handling of freedom of testation in modern law.

Latin American succession laws are generally quite homogeneous, yet when it comes to mandatory family protection, they split sharply into two groups, the composition of which, curiously, falls exactly along geographical lines. The South American jurisdictions are all found on one side, and those of Central America and Mexico on the other. The countries of the first group have, to this day, remained largely faithful to the tradition of forced heirship brought to the continent by Spain and Portugal. Accordingly, jurisdictions like Argentina and Brazil reserve large parts of the estate, known as the legítima, to descendants, ascendants, the surviving spouse, and sometimes even the surviving cohabitant of the deceased, and thus severely limit freedom of testation. By contrast, the Central American jurisdictions and Mexico upheld this tradition only until the late nineteenth century, when they switched abruptly to a regime that protects only those close family members who are unable to support themselves. On the spectrum of freedom of testation, the Latin American jurisdictions thus lie either at the very liberal or the very restrictive end. In recent years, the South American regimes have increasingly been criticized as being out of step with the realities of the twenty-first century. Just as in other parts of the world, the crumbling of the traditional family model and the rise of life expectancy are deemed to have eroded the foundations of forced heirship. In the light of these societal changes, many South America scholars advocate far-reaching reforms.

The compulsory portion of the German law of succession is a personal claim by a close family member of the deceased against the deceased’s heir, or heirs, to receive the value of one-half of his or her intestate share. The range of persons entitled to a compulsory portion is limited to the deceased’s descendants, his parents, and his surviving spouse. The right to a compulsory portion can be lost as a result of having been deprived of it by the deceased (which is possible in a limited number of situations), as a result of being ‘unworthy’ to receive a benefit from the deceased’s estate, or as a result of having waived the right. All in all, the system enacted in the German Civil Code (BGB) in 1900 has proved to be comparatively stable; even the amendments of 2010 as a result of the Act on the Reform of the Law of Succession and Prescription were rather modest and have shifted the balance between freedom of testation and family solidarity only very slightly in the direction of freedom of testation. This is often seen as confirmation that, essentially, the rules of the BGB provide a solution that is both pragmatic and reasonable. The Federal Constitutional Court has even, in 2005, ruled that a certain minimum participation for children in a deceased’s estate not only does not contravene the constitutional guarantee of ‘property and the right of inheritance’ in Article 14(1) GG, but is itself protected by that provision.

English law has not always applied the principle of freedom of testation. In an absolute form it dates only from 1891. Family provision legislation, based on the New Zealand model, was introduced into England and Wales in 1939 and gave the courts a discretion to award maintenance to the testator’s spouse and, in some cases, to his or her children. Subsequently, the legislation was extended and it now covers a number of different classes of claimant, as well as much greater entitlement for spouses. Although it was suggested in the 1970s that a system of fixed shares might be substituted for the discretionary family provision system, this did not happen, and the proposal seems unlikely to resurface. The present legislation is contained in the Inheritance (Provision for Family and Dependants) Act 1975 as amended. The problem areas at the present time relate to the entitlement of adult children, to the identification of dependants, and to the identification and entitlement of cohabitants. The cost of litigation in England is always a matter of concern, but in this field, where there is sometimes considerable uncertainly as to who is likely to obtain what provision, the application of the discretionary system causes some unease.

At the time of the reception of Roman-Dutch law at the Cape in the seventeenth century, both children and the surviving spouse enjoyed sufficient protection at the death of the breadwinner (normally the father and husband): children by way of the civilian legitimate portion and the spouse by way of the matrimonial property regime of community of property prevalent in Roman-Dutch law of the time. However, after the English occupation of the Cape in the early nineteenth century this protection was slowly eroded. This happened, first, by the acceptance of the principle of freedom of testation under English influence and, secondly, by the growing popularity of ante-nuptial contracts excluding community of property. This chapter explains how family protection was gradually restored in South Africa. In the case of children, this happened by the courts awarding a maintenance claim against the deceased parent’s estate; and in the case of the surviving spouse it was by means of a statutory maintenance claim against the estate of the other spouse. South African law therefore chose the common law approach of discretionary maintenance over the civilian approach of fixed shares. The chapter sets out the respective histories of these two claims as well as their operation in modern South African law. It discusses other possible protection measures and potential avoidance mechanisms. Finally, the chapter contains a brief discussion of the position of South Africans living under African customary law and the importance of the customary law principle of ‘ubuntu’ in this context.

In the United States, mandatory family protection is often subordinated to freedom of testation. Although spousal protection provisions exist, the content of these laws often differs dramatically from state to state. By contrast, children and other descendants of the deceased have little or no protection against disinheritance except in Louisiana. Related legal doctrines, such as the law of undue influence do, however, often serve some protective role against the unreasonable omission of descendants from a testator’s will. Even in Louisiana, which still maintains a doctrine of forced heirship, the content of the protection has changed from a law providing for family solidarity to one imposing n alimentary obligation upon the deceased in favour of limited classes of descendants.

Islamic succession law is grounded in the concept of forced heirship, with the deceased having the right to dispose only of one-third of his or her estate. With the position of legal heirs being so strong, a priori there is no need for instruments to override the deceased’s testamentary freedom. Modern legislatures have, however, altered the system with the introduction of the ‘obligatory bequest’ for orphaned grandchildren (al-waṣiyya al-wājiba), a scheme originating in the extinguished Ẓāhirī school of law and in particular in the works of Andalusian scholar Ibn Ḥazm († 1064). This is remarkable as traditional Islamic jurisprudence does not recognise any right of representation. As a result an orphaned grandchild will be awarded, to varying degrees, a share in the estate and the (implicit or explicit) will of the testator is thereby altered.

Today freedom of testation is qualified, in most countries of the world, by a degree of mandatory family protection. Broadly speaking, that protection can be delivered either by a system of fixed shares (such as forced heirship or compulsory portion), or by the court-based discretionary system which is often known as ‘family provision’. In fixed-share systems, certain family members (especially the surviving spouse and children) are protected merely because they are family members; in discretionary systems there is often an additional requirement of financial need. Fixed-share systems dominate in the civil law countries of Europe, South America, and the Far East as well as in Islamic countries and the Nordic countries; discretionary systems are found mainly in England and in the common law world more generally. The range of potential beneficiaries varies from system to system and country to country, but today includes the surviving spouse and children as well as, often, civil partners, cohabitants and even dependants. Each system has opposing strengths and weaknesses: fixed-share systems are predictable but inflexible; discretionary systems are flexible but unpredictable. Each system has sought various means to temper its weakness. Amidst general satisfaction with mandatory family provision, there have also been reforms and calls for more reform. In fixed-share systems there is support for moving, in whole or in part, to a system of judicial discretion. There is little demand, in discretionary systems, for a move in the other direction.

The rules of mandatory family protection in Scotland date from the late Middle Ages and were a close copy of the rules then (but no longer) in force in England. Originally they comprised two distinct ‘legal rights’ (as they came much later to be known). In the first place, the surviving spouse had a usufruct in the immovable property of the deceased, known as ‘terce’ (for widows) and ‘courtesy’ (for widowers). Courtesy extended to the whole immovable property, terce only to one-third. In the second place, the movable property of the deceased was divided into three equal parts. The surviving spouse had a claim (the ‘relict’s right’ or jus relictae) to one part, and the surviving children to another (‘legitim’). The final one-third (‘dead’s part’) was the testator’s to dispose of in his will. Terce and courtesy were abolished, rather unthinkingly, in 1964. Today, therefore, the surviving spouse and children are protected against disinheritance only in respect of movable property – a weak form of protection made weaker still by the absence of anti-avoidance measures that would prevent testators giving property away during their lifetimes. The law is widely acknowledged to be unsatisfactory, but there is less agreement as to how it should be changed. One view is that legal rights should be extended to immovable property. Another view is that legitim should be replaced by a maintenance claim for dependent children (only). In the face of these competing views, the Scottish Government has recently decided to leave the law unchanged.

New Zealand and Australia are named in that order in the title because New Zealand was the first to develop the discretionary family provision jurisdiction, in 1900, that now applies in New Zealand, Australia, and much of the common law world. This allows courts to make awards to family members from the estate of the deceased. Originally benefitting only the surviving spouse and children, family provision has extended the rules of eligibility in line with changes in the meaning of ‘family’. So as well as spouses, claims can also, in many of the Australasian jurisdictions, be made by civil partners, cohabitants, and same-sex partners. Most jurisdictions have also broadened the class of eligible children to include grandchildren and stepchildren who were being maintained by the deceased as well as children born of new reproductive techniques. Both New Zealand and Australia have significant indigenous populations and their eligibility to claim family provision is modified to accord with their customary law. Over time, the courts have adopted a much broader view of a deceased’s ‘moral duty’ to his or her family, particularly in regard to claims by adult children. The size of awards has increased correspondingly. The chapter discusses this development, as well as the increasing relevance of Indigenous customary law and how the courts deal with disentitling conduct. In view of the greatly expanded scope of family provision in New Zealand and Australia, testamentary freedom may be only an illusion in these jurisdictions.

In Poland, mandatory family protection is achieved by means of the compulsory portion. The chapter begins with a brief history of Polish succession law from the perspective of protection against disinheritance. Compulsory portion is also discussed from a constitutional perspective. Next, the regulation of compulsory portion, as well as of comparable instruments, are described. Among the topics discussed are: entitlement to compulsory portion; renunciation of claims; and disinheritance (‘deprivation’). Methods of calculating compulsory portion are presented, including the different situation in respect of different parts of the estate. Finally, liability for payment of compulsory portion is analysed, with particular attention being given to legatees per vindicationem and to the recipients of lifetime gifts from the deceased.