1. Regulatory structures in Europe
The concept of a portion of an estate being compulsorily reserved to make provision for close family members of a deceased derives from the principle of family succession. The concept of giving family members a share in the estate of the deceased exists in both the common law and continental European legal systems.
English law historically favoured the principle of freedom of testation more than the legal systems in continental Europe. Under English law, it is only in situations where members of a deceased’s family would otherwise not be appropriately supported that the court may reserve a portion of the estate to them (family provision). It is not required that the family member in question be ‘disinherited’ by the will of the deceased—the family provision may also be granted when the rules of intestate succession have been modified.
Conversely, in continental European legal systems, the statutory right to a compulsory or reserved portion only exists in cases where someone has been disinherited in a will. The right depends solely on the status of a person as the testator’s close relative. By granting a right or title to a fixed portion of the estate, irrespective of a need, the right to a reserved portion offers compensation for the disinheritance.
The laws of succession in continental Europe recognize two different versions of the concept of the compulsory portion. In some legal systems (Belgium, Spain, Italy, Greece, Portugal and, albeit not so clearly since the revision of its law of succession, France) the testator can only dispose of a specific portion of his estate by will, and a substantive right of inheritance exists for the beneficiaries of the reserved portion, who are entitled to the remaining property—the portion that cannot be disposed of by will—even if there is a disposition to the contrary (materielles Noterbrecht). In other legal systems (Germany, the Netherlands, Austria), the compulsory portion is monetary in nature (Pflichtteil). The person so entitled does not become heir but merely receives a monetary claim as compensation for his frustrated expectation of becoming heir. This monetary claim does not directly entail a restriction of the deceased’s freedom of testation, as the disposition by which the testator disinherited the beneficiaries remains valid. Nevertheless, it indirectly restricts his freedom of testation in that the testator cannot effectively leave his entire estate to whomsoever he wishes.
2. Functions of the compulsory portion
The common factor of a substantive compulsory right of inheritance to a part of the estate on the one hand and a monetary compulsory portion on the other is that they both allow close relatives within the family to benefit from the estate. In the continental European legal systems the right to a reserved portion is regarded as increasingly less important as a means of securing the beneficiaries’maintenance, especially in the case of children of the deceased. This is related to increased life expectancies, which have tended to see the younger generation receiving their inheritance at a more advanced age, usually when they have independently attained a decent standard of living and have accumulated their own assets. In recent times the right to a compulsory portion, especially in the form of a monetary award, has been regarded as an expression of family solidarity, granting close family members a right to a minimum share in the estate, irrespective of need. This does not exclude the possibility that the right to a compulsory portion will, in certain cases, secure the beneficiary’s livelihood. This will, in fact, very often be the case as far as the deceased’s elderly surviving spouse is concerned. It is worth noting that in countries where the reserved portion constitutes a substantive right of inheritance, the emphasis remains on its function as securing the beneficiaries’ subsistence.
In England, the situation is different. Family provision is based not on an abstract entitlement to a reserved portion, but on real financial need on the part of the deceased’s relatives. Claims may be made by the deceased’s surviving spouse or partner, the deceased’s children and also persons who have received maintenance during the deceased’s lifetime. The court verifies that reasonable provision has not been made for the entitled persons by the testator’s devises or by the laws of intestate succession. Reasonable maintenance is only provided where it is shown to be appropriate; that is, in cases where the persons concerned are unable to provide for themselves. Financial provision awarded by the court—a lump sum payment, several recurring payments or the transfer of a valuable asset from the estate, all of which are possible—is a substitute for the maintenance the deceased provided during his lifetime. This financial provision is designed to compensate for the fact that the deceased did not provide for his closest relatives upon his death, although he should have done so.
3. History of the compulsory portion
The regulation in English law was inspired by the Roman rule. In Roman law the pater familias had a social, rather than a legal, obligation to make a will in which he made provision for the maintenance of his familia, which at the time included not only his closest relatives but the entire household (freedom of testation). In the early agrarian period of the Roman Empire, the original principle of family succession and the later notion of freedom of testation did not conflict with one another. This changed during the late Republic when life in the city and in the Roman Empire became more complex, and the farming economy was replaced by an economy based on trade and capital. Due to changes in living conditions, the pater familias felt less duty-bound to name an heir to the farm and to provide some compensation for the other sui heredes. Moreover, disinheritance became an often used means to punish unpopular relatives.
The notion of family succession as opposed to freedom of testation re-established itself in what is termed ‘succession against the will’. The ius civile aimed at rendering difficult the disinheritance of sons of the household, from among whom the heir to the farm was traditionally recruited, and who were thus particularly important heirs. The testator could only effectively disinherit them by naming them in his will (eius filius meus exheres esto). The passing over of one of these sons would otherwise lead to the invalidity of the entire will. Conversely, other sui heredes (daughters, grandchildren, and wives under the legal authority of the husband), did not have to be explicitly named. Their disinheritance could be effectuated by a general clause (ceteri omnes exheredes sunto). This so-called compulsory portion in form (formelles Noterbrecht) has presumably had the effect of protecting sons of the house from disinheritance more frequently than the other relatives.
All the liberi of the testator were also protected by the praetorian succession against the testator’s will (bonorum possessio contra tabulas). The liberi were all the testator’s descendants irrespective of whether they were under his power or not. In cases where the testator passed over one of the sons in his power in his will, the civil succession followed the rules of the praetorian succession. The entire will was declared invalid and the inheritance was assigned following the rules of intestate succession. Daughters, grandchildren and sons who were no longer in the patria potestas could request a bonorum possessio contra tabulas if they had been passed over, with the result that the praetor invalidated the appointments of heirs but not the other dispositions contained in the will. If the liberi who had been appointed reacted by, in turn, requesting bonorum possessio contra tabulas, all the descendants, both those who had been appointed and those who had been passed over received their intestate share according to praetorian law.
Close relatives of the testator who had been disinherited by his will, but who would otherwise have been entitled to inherit (descendants, parents, siblings) acquired the entire intestate share, provided that they had successfully complained, by way of raising a querela inofficiosi testamenti, against a will that was considered to be contrary to the testator’s duty. The querela was the second important manifestation of the idea of a compulsory portion in Roman law. It guaranteed a substantive right of inheritance in cases where the disinheritance was deemed contrary to the testator’s duty. However, in cases where a testator left one quarter of the intestate share to the relatives entitled to challenge the will, the querela could not successfully be brought. Justinian subsequently reformed the querela inofficiosi testamenti by strengthening the position of those entitled to it, but without awarding them a fixed compulsory portion.
The Roman law, with its preference for freedom of testation but also with its restrictions based on the idea of family succession, was adopted in England. An important role was played, in this context, by canon law that was applied in the ecclesiastical courts. Roman law also asserted itself in medieval and early-modern continental Europe, where the commitment to the idea of family succession is traditionally considered to be stronger than in England. In fact, however, unlimited freedom of testation only existed in England from the first half of the 18th century until 1938 when the concept of family provision was introduced. Conversely, particularly in Germany, no other area of the law was influenced as strongly by Roman law as the law of succession. This led to an emphasis on freedom of testation which eventually came to prevail in the 16th century. On the other hand, since Roman times, there had always been a tension between freedom of testation and the idea of family succession. The complex concepts of the ius commune, granting close relatives the right to a share in the estate, were incorporated in the continental codifications and have thus exerted their influence to this day.
4. Trends in the development of the law
In recent times, the rules relating to the compulsory portion in the continental European legal systems have become the object of debate. Both in countries such as Germany, where the model of the monetary compulsory portion applies, and in countries that recognize a substantive right of inheritance to part of the estate (eg France and the Netherlands), the justification of the compulsory portion has been questioned; in particular, doubts have been expressed whether limiting the deceased’s freedom of testation can be justified by the idea of family succession. In the meantime, however, a consolidation of the right to a compulsory portion can be detected. Thus, the German Federal Constitutional Court has not only ruled that the right to a compulsory portion is in conformity with the Constitution. The Court also ruled that the entitlement of the deceased’s children to a minimum pecuniary share in the estate must be regarded as a core element of the law of succession, as guaranteed by the Constitution (BVerfG 19 April 2005, BVerfGE 112, 332 ff). A recent reform of the German rules relating to the compulsory portion has confirmed this, even if it has strengthened the testator’s freedom of testation.
In other continental European countries the discussion has also shifted from fundamental doubts regarding a compulsory portion based on the idea of family succession to a discussion of more moderate reform proposals. Two trends can be observed, although they do not coincide in all European states. The first is the strengthening of the relationship between married or unmarried partners, as evident in the expansion of intestate succession rights of the surviving spouse (succession upon death). For example, since 1981, in Belgium, a surviving spouse’s right of usufruct relates to the entire estate. In England, the sum of money to which a surviving spouse is entitled apart from personal chattels and a lifelong right of usufruct, has increased continuously over the years. This compensates for the fact that the English matrimonial property law does not sufficiently protect the surviving spouse. In cases of small estates, the surviving partner becomes the sole heir de facto, depleting or considerably reducing the reserved portion for the children.
The second trend in the development is to replace the substantive right of inheritance to part of the estate with a monetary compulsory portion. Thus, Dutch succession law has completely abandoned the concept of a substantive right of inheritance in favour of a compulsory portion model. The beneficiary of a reserved portion is no longer an heir, but a creditor of a monetary claim against the estate. However, only the children are entitled to a compulsory portion; the parents or spouse have no right to a compulsory portion under current Dutch law. Belgium has retained the concept of the substantive right of inheritance. But it has been reformed by extending the possibility of encroaching upon the surviving spouse’s substantive right of inheritance. French law, too, which would, until recently, have been considered as epitomizing the model of the substantive right of inheritance, has experienced profound changes and is moving towards the monetary compensation model. The most recent reform dates from 1 January 2007.
5. Social Developments
The development of the right to a reserved portion described above reflects profound social changes with respect to the role and concept of the family. Since the family’s function as an economic unit has diminished, it has become increasingly necessary to provide some other justification for giving close relatives a share in the deceased’s estate. This particularly applies to children’s right to a reserved portion, as they generally have no need for maintenance at the time of their parents’ death (see 2. above). It also applies to a right to a reserved portion for the deceased’s parents, as nowadays parents are no longer automatically considered to be part of the nuclear family.
The partner’s right to a legitimate portion is a more complex matter. In terms of the persons concerned, the right no longer only applies to a surviving spouse. Along with the increasing heterogeneity of the forms of partnerships, the deceased’s same-sex partner is today also entitled to inherit and to receive a legitimate portion under continental European legal systems. This is not the case in England. An unmarried partner can, however, also claim family provision in England. But the growing importance of the partnership relations will manifest itself, in the first place, in the rules on intestate succession.
The trend in continental European countries to move away from a substantive entitlement in the estate and towards a monetary claim is probably based on the fact that nowadays the family as a symbiotic community is only a temporary phenomenon, usually lasting only as long as the children living in this community view it as the centre of their lives. If the death of their parents occurs at a later stage, when the children are independent, it is usually more practical for them to receive a monetary claim than to become part of a community of heirs through a substantive right of inheritance.
6. Structures of a uniform law
In contrast to the principle of freedom of testation, which would be a central pillar for any uniform law of succession, the notion of family succession is a subsidiary principle. Family succession is, however, the basis of the rules on intestate succession, ie in cases where the freedom of testation has not been exercised. In private international law, this raises the question formulated by the European Commission ([[European Commission) green paper on succession and wills (succession law (international)): should the right to a legitimate portion be recognized even where the law designated by a conflict of laws rule does not recognize it or defines its scope differently (question 10)? The European Parliament answered this question affirmatively in its resolution of 16 November 2006 (recommendation 8). That answer also pre-determines the basic decision which must be made in the context of a uniform European law of succession. It concerns the function of the right to a compulsory portion, primarily its maintenance dimension, which is viewed differently by different European legal systems. Nonetheless, even in countries (such as Germany) where the granting of a compulsory portion irrespective of a person’s need is taken to be justified as an expression of family solidarity, this may often have the side-effect of providing for maintenance. The guarantee of subsistence can, indeed, be subsumed under the concept of family solidarity.
The perception of the function of the compulsory portion also determines who should be entitled to receive a compulsory portion. If the function of the right is characterized as providing maintenance, the persons entitled to it would also have to be the beneficiaries of a right to a compulsory portion. If maintenance is not viewed as the central objective of the doctrine, the changes in the family structure described above should be reflected in the entitlement to a compulsory portion so that, for example, a deceased’s parents’ right to a compulsory portion could be called into question. The question as to whether basing the right to a compulsory portion on a person’s legal status should be revised in favour of the existence of a union based on mutual responsibility has yet to be fully explored. The English family provision comes closer to this approach than the continental European concepts, which determine the entitlement to a compulsory portion on an abstract basis. Presently, the state of the real relationship between the testator and the beneficiary is best reflected in the reasons allowing a testator to deprive members of his family from their compulsory portion.
The conduct of legal proceedings will also depend on whether the claim is based on an abstract entitlement, a material need, or the existence of a real relationship of mutual responsibility. While in the first case proof of the family status is all that is required, in the latter two situations the details of the claimant’s economic position and of the relationship between him and the deceased have to be determined individually. This is not uncommon in continental European courts. For in inter vivos maintenance claims, the claimant’s need must always be individually established.
One may venture to predict that the move towards a monetary compulsory portion model that is observable in the continental European legal systems will infuse this area of the law with a new dynamic. In England compensation can be made in the form of a monetary payment, but also by transferring particular items, or by creating a trust (trusts).
Dieter Henrich and Dieter Schwab (eds), Familienerbrecht und Testierfreiheit im europäischen Vergleich (2001); Marion Trulsen, Pflichtteilsrecht und englische family provision im Vergleich (2004); JC Sonnekus, ‘The New Dutch Code on Succession as Evaluated Through the Eyes of a Hybrid Legal System’ (2005) 13 ZEuP 71; European Commission (ed), Green Paper Succession and Wills, COM (2005) 0065; European Parliament, Resolution with recommendations to the Commission on succession and wills (2005/2148 (INI)), P6_TA (2006)0496; Marius J de Waal, ‘A Comparative Overview’ in Kenneth GC Reid, Marius J de Waal and Reinhard Zimmermann (eds), Exploring the Law of Succession (2007) 1; Reinhard Zimmermann, ‘Compulsory Heirship in Roman Law’ in Kenneth GC Reid, Marius J de Waal and Reinhard Zimmermann (eds), Exploring the Law of Succession (2007) 27; Law Commission (ed), Intestacy and Family Provisions on Death: A Consultation Paper (2009); DH Parry and R Kerridge, The Law of Succession (12th edn, 2009); Alain-Laurent Verbeke and Yves-Henri Leleu, ‘Harmonisation of the Law of Succession in Europe’ in Arthur S Hartkamp and others (eds), Towards a European Civil Code (4th edn, 2011) 459.