Matthew Craven
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199217625
- eISBN:
- 9780191705410
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199217625.001.0001
- Subject:
- Law, Public International Law
The issue of state succession continues to be a vital and complex focal point for public international lawyers, yet it has remained strangely resistant to effective articulation. The formative period ...
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The issue of state succession continues to be a vital and complex focal point for public international lawyers, yet it has remained strangely resistant to effective articulation. The formative period in this respect was that of decolonization: a period in which international lawyers were not only faced with the task of managing a process of profound political and legal change, but also the transformation of their own discipline (in which the promises of the UN Charter would be realized in an international community of sovereign peoples). Later, in the 1990s, a series of territorial adjustments placed succession once again at the centre of international legal practice, in new contexts that went beyond the traditional model of decolonization: the disintegration of the Soviet Union, Yugoslavia, and Czechoslovakia, and the unifications of Germany and Yemen brought to light the fundamentally unresolved character of issues within the law of succession. Why have attempts to codify the practice of succession met with so little success? Why has succession remained so problematic a feature of international law? This book argues that the answers to these questions lie in the political backdrop of decolonization and self-determination, and that the tensions and ambiguities that run throughout the law of succession can only be understood by looking at the historical relationship between discourses on state succession, decolonization, and imperialism within the framework of international law. It provides a critical assessment of the failed attempts to codify the law of state succession, and explores the implications of a new pragmatic framework for the future development of the law.Less
The issue of state succession continues to be a vital and complex focal point for public international lawyers, yet it has remained strangely resistant to effective articulation. The formative period in this respect was that of decolonization: a period in which international lawyers were not only faced with the task of managing a process of profound political and legal change, but also the transformation of their own discipline (in which the promises of the UN Charter would be realized in an international community of sovereign peoples). Later, in the 1990s, a series of territorial adjustments placed succession once again at the centre of international legal practice, in new contexts that went beyond the traditional model of decolonization: the disintegration of the Soviet Union, Yugoslavia, and Czechoslovakia, and the unifications of Germany and Yemen brought to light the fundamentally unresolved character of issues within the law of succession. Why have attempts to codify the practice of succession met with so little success? Why has succession remained so problematic a feature of international law? This book argues that the answers to these questions lie in the political backdrop of decolonization and self-determination, and that the tensions and ambiguities that run throughout the law of succession can only be understood by looking at the historical relationship between discourses on state succession, decolonization, and imperialism within the framework of international law. It provides a critical assessment of the failed attempts to codify the law of state succession, and explores the implications of a new pragmatic framework for the future development of the law.
Kenneth Reid and Marius de Waal
- Published in print:
- 2007
- Published Online:
- March 2012
- ISBN:
- 9780748632909
- eISBN:
- 9780748651436
- Item type:
- book
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748632909.001.0001
- Subject:
- Law, Comparative Law
By comparison with other areas of private law, the law of succession has been neglected by modern scholars. This book contributes to its rehabilitation by examining key issues in succession law from ...
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By comparison with other areas of private law, the law of succession has been neglected by modern scholars. This book contributes to its rehabilitation by examining key issues in succession law from a variety of perspectives: national, historical and comparative. In particular it seeks to extend the techniques of legal comparison into an area of law where hitherto they have been little used. The jurisdictions most prominently featured are the mixed jurisdictions of Scotland and South Africa, but there are frequent comparative references, and special attention is given to the Netherlands as the country that has most recently re-written its succession law. The authors of the individual chapters are drawn from Scotland, South Africa, Germany, Italy and the Netherlands. Among the topics covered are freedom of testation, testamentary conditions and public policy, forfeiture clauses and events, revocation of wills by changed circumstances, revocation of mutual wills, fideicommissary substitutions and succession agreements.Less
By comparison with other areas of private law, the law of succession has been neglected by modern scholars. This book contributes to its rehabilitation by examining key issues in succession law from a variety of perspectives: national, historical and comparative. In particular it seeks to extend the techniques of legal comparison into an area of law where hitherto they have been little used. The jurisdictions most prominently featured are the mixed jurisdictions of Scotland and South Africa, but there are frequent comparative references, and special attention is given to the Netherlands as the country that has most recently re-written its succession law. The authors of the individual chapters are drawn from Scotland, South Africa, Germany, Italy and the Netherlands. Among the topics covered are freedom of testation, testamentary conditions and public policy, forfeiture clauses and events, revocation of wills by changed circumstances, revocation of mutual wills, fideicommissary substitutions and succession agreements.
Marius J de Waal
- Published in print:
- 2007
- Published Online:
- March 2012
- ISBN:
- 9780748632909
- eISBN:
- 9780748651436
- Item type:
- chapter
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748632909.003.0011
- Subject:
- Law, Comparative Law
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 ...
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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
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.
W David H Sellar
- Published in print:
- 2007
- Published Online:
- March 2012
- ISBN:
- 9780748632909
- eISBN:
- 9780748651436
- Item type:
- chapter
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748632909.003.0013
- Subject:
- Law, Comparative Law
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 ...
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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
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.
Kenneth G C Reid, Marius J. de Waal, and Reinhard Zimmermann (eds)
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199696802
- eISBN:
- 9780191732065
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199696802.001.0001
- Subject:
- Law, Company and Commercial Law
This book is about testamentary formalities, that is to say, about the requirements which the law of succession imposes in order for a person to make a will. How are wills made? What precisely are ...
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This book is about testamentary formalities, that is to say, about the requirements which the law of succession imposes in order for a person to make a will. How are wills made? What precisely are the rules — as to the signature of the testator, the use of witnesses, the need for a notary public or lawyer, and so on? Is there is a choice of will-type and, if so, which type is used most often and what are the advantages and disadvantages of each? How common is will-making or do most people die intestate? What happens if formalities are not observed? How can requirements of form be explained and justified? What is the legal history of wills, the state of the law today, and the prospects for the future? Is this a fruitful topic for comparative law? The book explores these questions through a representative sample of countries in Europe as well as in the USA, Latin America, South Africa, Australia, and New Zealand. A final chapter draws the threads together and offers an overall assessment of the development of wills and will-making in Europe and beyond.Less
This book is about testamentary formalities, that is to say, about the requirements which the law of succession imposes in order for a person to make a will. How are wills made? What precisely are the rules — as to the signature of the testator, the use of witnesses, the need for a notary public or lawyer, and so on? Is there is a choice of will-type and, if so, which type is used most often and what are the advantages and disadvantages of each? How common is will-making or do most people die intestate? What happens if formalities are not observed? How can requirements of form be explained and justified? What is the legal history of wills, the state of the law today, and the prospects for the future? Is this a fruitful topic for comparative law? The book explores these questions through a representative sample of countries in Europe as well as in the USA, Latin America, South Africa, Australia, and New Zealand. A final chapter draws the threads together and offers an overall assessment of the development of wills and will-making in Europe and beyond.
Sjef van Erp
- Published in print:
- 2007
- Published Online:
- March 2012
- ISBN:
- 9780748632909
- eISBN:
- 9780748651436
- Item type:
- chapter
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748632909.003.0021
- Subject:
- Law, Comparative Law
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 ...
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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
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.
Reinhard Zimmermann
- Published in print:
- 2007
- Published Online:
- March 2012
- ISBN:
- 9780748632909
- eISBN:
- 9780748651436
- Item type:
- chapter
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748632909.003.0012
- Subject:
- Law, Comparative Law
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 ...
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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
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.
J C Sonnekus
- Published in print:
- 2007
- Published Online:
- March 2012
- ISBN:
- 9780748632909
- eISBN:
- 9780748651436
- Item type:
- chapter
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748632909.003.0015
- Subject:
- Law, Comparative Law
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, ...
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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.Less
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.
Tirthankar Roy and Anand V. Swamy
- Published in print:
- 2016
- Published Online:
- May 2017
- ISBN:
- 9780226387642
- eISBN:
- 9780226387789
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226387789.003.0005
- Subject:
- Economics and Finance, Economic History
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 ...
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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
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.
George L Gretton
- Published in print:
- 2007
- Published Online:
- March 2012
- ISBN:
- 9780748632909
- eISBN:
- 9780748651436
- Item type:
- chapter
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748632909.003.0019
- Subject:
- Law, Comparative Law
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 ...
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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
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.
- Published in print:
- 2007
- Published Online:
- March 2013
- ISBN:
- 9780226554198
- eISBN:
- 9780226554228
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226554228.003.0016
- Subject:
- History, World Modern History
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 ...
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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
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.
Christine Bell
- Published in print:
- 2016
- Published Online:
- August 2016
- ISBN:
- 9780198755517
- eISBN:
- 9780191816697
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198755517.003.0009
- Subject:
- Law, Constitutional and Administrative Law
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 ...
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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
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.
Robert Stein
- Published in print:
- 2017
- Published Online:
- April 2017
- ISBN:
- 9780198757108
- eISBN:
- 9780191817014
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198757108.003.0002
- Subject:
- History, European Early Modern History
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 ...
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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
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.
