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A Comparative Overview*

Marius J de Waal

in Exploring the Law of Succession: Studies National, Historical and Comparative

This book reviews selected topics in the law of succession from a comparative and, in some instances, a historical perspective, explaining that the primary function of the law of succession is to ... More

This book reviews selected topics in the law of succession from a comparative and, in some instances, a historical perspective, explaining that the primary function of the law of succession is to identify both the persons entitled to succeed to the deceased and also the property they are to receive. The central thesis of this chapter is that changes in the law of succession have been detected and explained principally by means of comparative scholarship. There are two general issues identified by that scholarship. The first is the significance of social and economic change and its impact on aspects of the law of succession, and the second is that the identification and analysis of these changes have been the stimulus for a new mission for comparative researchers in the field of the law of succession.Less

Succession Law in Scotland – a Historical Perspective

W David H Sellar

in Exploring the Law of Succession: Studies National, Historical and Comparative

This chapter explores the history of the law of succession in Scotland. It aims to provide a historical context for the present law by setting out the main outlines of the law of succession in ... More

This chapter explores the history of the law of succession in Scotland. It aims to provide a historical context for the present law by setting out the main outlines of the law of succession in Scotland before the ground-breaking changes brought about in 1964 by the Succession Act. The chapter suggests that the history of the Scots law of succession is one of quite remarkable legal conservatism rooted in a remote past. It explains that for more than six hundred years before 1964, there was not one law of succession in Scotland but two, depending on whether the property in question was heritable or moveable.Less

The New Dutch Law of Succession

Sjef van Erp

in Exploring the Law of Succession: Studies National, Historical and Comparative

This chapter discusses the Dutch law of succession that entered into force as Book 4 of the Civil Code in January 2003. It outlines the new law of succession, both testate and intestate, focusing on ... More

This chapter discusses the Dutch law of succession that entered into force as Book 4 of the Civil Code in January 2003. It outlines the new law of succession, both testate and intestate, focusing on the rights of the surviving spouse and children, and describes the basic features of the new law against the general part on property law in the new Civil Code. The chapter suggests that the new Dutch law of succession is in part influenced by developments which are shared by all western societies, but is also in part the expression of changes in Dutch society as well as of Dutch notarial practice under the old Civil Code.Less

Compulsory Heirship in Roman Law

Reinhard Zimmermann

in Exploring the Law of Succession: Studies National, Historical and Comparative

This chapter examines the history of compulsory heirship in Roman law, providing an overview of the development of the idea of a right to obtain part of the estate even contrary to the will of the ... More

This chapter examines the history of compulsory heirship in Roman law, providing an overview of the development of the idea of a right to obtain part of the estate even contrary to the will of the testator. It explains that this right is the historical root of the compulsory portion of modern law of succession and that the idea of succession, contrary to the last will, presupposes the recognition of testamentary succession itself. Thus, the validity of testamentary dispositions was dependent upon the fact that an heir had been instituted at the beginning of the testament.Less

Freedom of Testation and the Ageing Testator

J C Sonnekus

in Exploring the Law of Succession: Studies National, Historical and Comparative

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, ... More

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.Less

Forced Heirship and Family Provision in Latin America

Jan Peter Schmidt

in Comparative Succession Law: Volume III: Mandatory Family Protection

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 ... More

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.Less

Succession of Property: Joint versus Individual Right

Tirthankar Roy and Anand V. Swamy

in Law and the Economy in Colonial India

Whereas agricultural property invited specific legislation, the law of succession and inheritance outside agriculture initially upheld the rights of the joint family in such matters, as set out in ... More

Whereas agricultural property invited specific legislation, the law of succession and inheritance outside agriculture initially upheld the rights of the joint family in such matters, as set out in classical texts on Hindu law. In a commercializing environment, the decision to empower a collective body gave rise to disputes. For example, disputes occurred over the question, in a family firm of merchants, who had a stronger claim to inherit property, the partner or the son? When religious law privileged the claim of an heir on spiritual grounds whereas others’ claims could be justified on grounds of equity or efficiency, what should the judges do? By what law would testaments be prepared and accepted in the courts? The history of legislation in property rights (excluding agricultural land) is a history of a gradual strengthening of testamentary powers of individuals overriding the right of the collective.Less

Fideicommissary Substitutions: Scots Law in Historical and Comparative Perspective

George L Gretton

in Exploring the Law of Succession: Studies National, Historical and Comparative

This chapter examines fideicommissary substitutions in Scots law from a comparative and historical standpoint, explaining that Scotland had a pre-Reformation inter vivos institution called the ... More

This chapter examines fideicommissary substitutions in Scots law from a comparative and historical standpoint, explaining that Scotland had a pre-Reformation inter vivos institution called the tailzied destination. About the beginning of the seventeenth century this began to split into two: the tailzie, containing clauses de non alienando et non contrahendo debitum, and the substitution without such clauses. The current position is that, in the law of succession, fideicommissary substitution de residuo still exists, while in inter vivos transfers of land, it is common in the form of the survivorship destination.Less

Compulsory Portion in France

Cécile Pérès

in Comparative Succession Law: Volume III: Mandatory Family Protection

This chapter deals with the réserve héréditaire in the French law of succession. In the presence of descendants or, failing that, a surviving spouse, French law limits the deceased’s freedom to ... More

This chapter deals with the réserve héréditaire in the French law of succession. In the presence of descendants or, failing that, a surviving spouse, French law limits the deceased’s freedom to dispose of his or her property by will or gifts. A person’s estate is notionally divided into two parts: the quotité disponible, which he or she may freely dispose of, and the réserve héréditaire, which the law transfers to certain designated heirs. The réserve héréditaire of the French Civil code is the fruit of a long historical tradition stemming from both Roman law and customary law. It has constantly adapted to the evolution of society. That evolution continues today. The Act of 23 June 2006 had made the réserve héréditaire evolve in a more liberal direction. However, the foundations of the réserve héréditaire – particularly with regard to descendants – remain solid and unchallenged.Less

Rural Widows, City Widows, and the Fight for Inheritance

in Worries of the Heart: Widows, Family, and Community in Kenya

This chapter looks at rural Maragoli widows, city widows, and the fight for inheritance. The Law of Succession Bill became one of the major sources of conflict between rural Maragoli widows and other ... More

This chapter looks at rural Maragoli widows, city widows, and the fight for inheritance. The Law of Succession Bill became one of the major sources of conflict between rural Maragoli widows and other women whom their husbands had married or had affairs with in the cities. National Assembly records showed that members consistently phrased their support for the bill. The succession law created all kinds of legal ambiguities. By using the vague rhetoric of development and national unity to cover up the citizens' real and practical concerns, the new leaders had acted as selfishly and irresponsibly as the colonial rulers before them. By forcing the inexperienced Maragoli widows to defend their rights in callous and indifferent urban courts, the postcolonial rulers were paradoxically beginning to resemble their colonial predecessors.Less

Family Provision in South Africa

Marius J de Waal

in Comparative Succession Law: Volume III: Mandatory Family Protection

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 ... More

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.Less

Family Provision in New Zealand and Australia

Nicola Peart and Prue Vines

in Comparative Succession Law: Volume III: Mandatory Family Protection

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, ... More

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.Less

International Law, the Independence Debate, and Political Settlement in the UK

Christine Bell

in The Scottish Independence Referendum: Constitutional and Political Implications

This chapter examines the role that international law played in the Scottish independence debates. It argues that international law surprisingly played a central role. International law was used by ... More

This chapter examines the role that international law played in the Scottish independence debates. It argues that international law surprisingly played a central role. International law was used by both Yes and No campaigns. The chapter examines the key international legal arguments, how the campaigns used and responded to them. It suggests that each campaign deployed international law in strategically instrumentalist ways to bolster their political claims as to the consequences of independence. It traces an unevenness in the Yes and No uses of international law. It suggests that the Scottish referendum debate exposed the inadequacy of international law on succession for contemporary situations, as dealing in dichotomies between rigid separation and forms of continuity which do not reflect the modern business of disentangling states or of ensuring forms of legal and political togetherness.Less

The Titles

Robert Stein

in Magnanimous Dukes and Rising States: The Unification of the Burgundian Netherlands, 1380-1480

This chapter traces how the Burgundian dynasty managed to unite the different principalities of the Netherlands under its rule, and thus created a composite monarchy. The Burgundian claims were ... More

This chapter traces how the Burgundian dynasty managed to unite the different principalities of the Netherlands under its rule, and thus created a composite monarchy. The Burgundian claims were highly dubious, especially those to the principalities belonging to the Holy Roman Empire. The dukes made systematic use of the opportunities that were offered to them by circumstances. Through acting and negotiating, promising and threatening, and above all buying, they brought together a rich body of different principalities located in two kingdoms and two or three language areas. In many cases the definitive acquisition of the legal titles was preceded by a de facto takeover of power. Enormous sums of money were involved in the acquisition of the principalities, to buy off competing claims and to relieve existing debts. In this expansion they were dependent on support from the regional representative institutions.Less