Freedom of Testation
1. Freedom of testation as a central principle of the law of succession
Freedom of testation, besides family succession (compulsory portion) and universal succession (devolution of the inheritance/universal succession), is also a basic principle of succession law. It is recognized by all law of succession regimes. The extent of freedom of testation, however, varies substantially depending on the degree to which the family participates in the estate.
Freedom of testation is an individual civil liberty, which grants the testator the authority to define who will take over his estate after his death and acquire rights in it. It is the counterpart in the law of succession of the freedom of contract inter vivos and the determining principle of succession in accordance with a disposition by the deceased (succession upon death). The term ‘freedom of testation’ refers to the central juridical act used in this context: the will. It is the prototype of a unilateral legal transaction without an addressee. The bilateral legal transaction within the law of succession, the contract of inheritance or pactum successorium (contracts of inheritance and joint wills), does not traditionally play a central part in the discourse on and practice of freedom of testation. In the Roman legal tradition it is even viewed as invalid because it infringes general public policy (contra bonos mores).
In comparison with freedom of contract inter vivos, freedom of testation is the more ‘arbitrary' right as it refers exclusively to the wishes of one person, the testator. This is illustrated by the fact that the testator may revoke, change, annul and destroy, and then renew his dispositions at any time and without specifying any reasons. The law of succession takes account of the fact that the testator may use his freedom of testation several times in his lifetime and regards as legally binding only the ‘last (expressed) will’. This idea was already voiced in Ulp. D. 34,4,4 (Corpus Juris Civilis). The relevant passage reads: ambulatoria enim est voluntas defuncti usque ad vitae supremum exitum (The will of a person is changeable until the moment of his death).
2. History of the freedom of testation
Historically, freedom of testation as a principle of the law of succession came after family succession. As a legal concept it was alien to Germanic law. The estate of the head of the family was in joint family ownership. His power of disposal was limited substantially both in life and upon death. From the point of view of the law of succession the sons were first in line as the so-called ‘in-house heirs’. An heir is not created by man but by God, as Tacitus explained the situation: Heredem tamen successoremque sui cuique liberi, et nullum testamentum (Germania, ch XX). Under the influence of canon law, the spouse’s legal right to inherit was subsequently added. In Germanic law, the testator was thus comprehensively bound by his family ties.
Freedom of testation originated in Rome. It evolved from the succession of the sui heredes. From an historical perspective, freedom of testation did not initially stand in contrast to family succession to the same extent as it tends to be seen today. This had to do with the agrarian land-based structure of early Roman society. Inheritance could render an estate uneconomical if it was divided among many family members, and there was, moreover, a danger of fragmentation since each member of the household could demand partition. Roman law subsequently introduced the concept of freedom of testation, so as to make it possible to transfer the estate to a sole heir while at the same time ensuring that the other members of the household were financially secure. This development coincided with the abandonment of the agrarian manorial economy and way of life in favour of an urbanized culture, the transition to commerce, monetary transactions and other forms of capital accumulation along with the political rise of Rome to a world Empire. The decisions regarding the succession of property held by the testator thus became more complex.
Since the later Roman Republic, freedom of testation was the dominant principle of the law of succession. The making of a will was a moral duty for members of the upper classes. They were expected to make dispositions in favour of their familia or at least to their closest relatives. Freedom of testation and the family partaking in the estate were not yet notions that were opposed to each other. In the upheavals towards the end of the Republic, however, these ideas began to falter. Wills, which violated a moral duty (testamenta inofficiosa), by passing over the testator’s closest relatives for instance, were common occurrences. The law therefore had to react: apart from the bonorum possessio contra tabulas another institution, the querela inofficiosi testamenti was created, which emphasized the idea of family succession as opposed to the testator’s arbitrary will (compulsory portion). The basic conflict between freedom of testation and the family’s participation in the estate was thus introduced and to this day remains a characteristic of the law of succession, albeit to different degrees.
In medieval and early modern times this conflict was perpetuated—with a tendency towards emphasizing freedom of testation not only in England, but also in continental Europe. Canon law considerably contributed to this development. It supported the power of disposal mortis causa by allowing clerics to dispose of their movable assets outside of their families. Among laymen this was called the ‘dead person’s part’. In canon law, this did not refer to dispositions regulated by the law of succession, but to donations inter vivos ad pias causas, so-called gifts, which were given under the proviso that the donor retained the beneficial interest, or that they were suspended until his death. By recognizing the concept of the dead person’s part, the idea was abandoned that the family estate was a legal unit and that no member of the family, not even its head, had the power of disposal without the consent of the other members. On the other hand, canon law stimulated the moral duty of the testator to act responsibly when making a will. While the dead person’s part originally only referred to charitable dispositions, grants to the king, to relatives and to the testator’s spouse were later also admitted. By the 16th century this special interpretation of the freedom of testation had established itself and remained present until well into the modern era.
In the age of natural law and the law of reason, freedom of testation was further linked with the individualistic theory of property (property). It was now seen as a continuation, within the law of succession, of the owner’s power of disposal inter vivos. The bourgeois era revived John Locke’s early modern theory of the value of labour, which stated that labour and effort are the basis of private property. Consequently, the acquisition of property under the law of succession was seen as undeserved, because it was not acquired by labour or effort (succession law); and freedom of testation, as a result of its close link to freedom of ownership, was also delegitimized. In the 19th century, this led the succession law regimes in continental Europe into a crisis. There were fierce battles over its abolition as a relic of an outdated, status-based legal system. No such commotion occurred in English law. Freedom of testation in England remained a basically undisputed principle, mainly because historically it was perceived neither as being linked to the family nor as a mere continuation of ownership inter vivos. In the common law the freedom of testation rather was and is a concept linked to the testator’s individual and original civil liberty and to his right to determine his affairs.
3. Trends in the development of the law
In the 20th century the continental European model of succession law drew closer to the English concept. Along with the law of succession in general, the freedom of testation has been consolidated. Not only is it part of the generally accepted stock of the national systems of private law, it is also guaranteed by constitutional law in several countries, including Germany, Spain, Italy and most eastern European countries. Insofar as the constitutions contain rules concerning the law of succession, the traditional link between freedom of ownership and freedom of testation has been maintained. German private law in particular has signalled a return to freedom of testation as a determining principle of the guarantee of the law of succession in the German constitution.
There are several reasons for this development. First of all, the restrictions of the freedom of testation by family succession are decreasing. Even in France, traditionally seen as an exponent of a legal system where compulsory statutory shares are granted to close relatives, one can observe the general European tendency towards the ‘more modern solution’ (Dieter Leipold) of merely granting a monetary claim to close relatives (compulsory portion). This transition towards a compensatory model reinforces freedom of testation because it leaves the disposition excluding close relatives from succession unaffected and instead seeks compensation by means of a monetary claim.
Freedom of testation itself is today to a lesser degree regarded as being subject to moral duties than it has been in the recent past. The moral attitude of the testator is no longer examined. This has been replaced by an examination of the content of his dispositions, though this is exercised in an increasingly cautious manner. Only in exceptional circumstances is a will held to be invalid for infringement of the boni mores (public policy). Since the Hohenzollern decisions of the German Federal Supreme Court (BGH 2 December 1998, BGHZ 140, 118) and the German Federal Constitutional Court (BVerfG 22 March 2004, NJW 2004, 2008), discussions in Germany have focused more around an issue that has traditionally taken centre stage in the English legal system with its emphasis on the freedom of testation: when is a disposition mortis causa ineffective for an infringement of the boni mores based on the prohibition of discrimination? In continental Europe this development is embedded in the increasing ‘constitutionalization’ of the law of succession.
4. Developments in society
From a sociological perspective the gradual decline of the relevance of family succession and the increased emphasis on freedom of testation must be evaluated against the background of several strains of development characterizing modern Europe. Demographic changes lead to more and more people living longer lives and being able to dispose of greater estates. The term of a ‘society of heirs’ is already proverbial in continental Europe. At the same time, succession law regimes are increasingly confronted with specific problems concerning the effectiveness of dispositions mortis causa resulting from the advanced age of testators.
In the Anglo-American world where it is not an uncommon occurrence for legal transactions inter vivos (so-called will substitutes) to replace dispositions mortis causa, a decrease in the latter has been noted as early as the 1980s. This may be explained, firstly, by a circumstance that probably applies in continental Europe as much as in England. Assets nowadays contain elements that are easier to transfer inter vivos than mortis causa. This applies in particular in the field of the so-called human capital. As a feature characteristic for the English law of succession, it must be added that no heir can be appointed by will to the entirety of the property or a part thereof, but there can only be dispositions relating to individual grants of property. These can, however, be the object of legal transactions inter vivos upon death as much as of dispositions mortis causa. In continental European legal systems the position is different because only dispositions mortis causa can relate to the property as a whole or to parts thereof. In this respect, dispositions mortis causa have unique characteristics in continental Europe. One may note, however, that even a continental European testator is today less reliant upon dispositions mortis causa than in the past thanks to a varied range of tools of modern estate planning inter vivos being available today.
The increased importance of freedom of testation in the continental European and Anglo-American legal traditions is, however, generally a reflection of the fact that the living conditions of a testator are becoming ever more complex. This is illustrated clearly by the dissolution of the traditional concept of a (nuclear) family encompassing husband and wife who have children together (family). It has been replaced by a multifaceted idea of a family, which is currently moving away from concentrating on spouses of different sex with their biological offspring in favour of a wider family concept comprising cohabitation with children. Cohabitation between partners of different sex as well as between homosexual persons have been accepted by society in addition to the traditional relationship based on marriage. Patchwork families may encompass the children from several former relationships of both partners. Freedom of testation with its inherent flexibility best deals with the variety and complexity of the individual ways of life. It does not come as a surprise that estate planning, which tailors legal devices inter vivos and mortis caua according to the individual circumstances has already attended to these changes in testators’ social environments. Freedom of testation—as opposed to the traditional rules of family succession—is probably the central element in a future, uniform law of succession for Europe.
5. Freedom of testation as a principle of an optional uniform law
On the way towards a European law of succession, the first moves in the field of conflicts of laws have already recognized the central position of freedom of testation (succession law (international)). The principle of freedom of testation, however, also probably represents one of the pillars of any future substantive optional law of succession on a European level (succession law). The development of a disposition mortis causa which can be chosen by testators everywhere in Europe is currently being discussed. This will probably have to be a form of will since the legal systems of the Romanistic legal tradition, ie France, Belgium, Italy and Spain, but also England and the Netherlands either view with scepticism the idea of a contract of inheritance (contracts of inheritance and joint wills) or do not permit it at all. Moreover, legal systems which recognize contracts of inheritance (eg Denmark, Germany, Austria), have traditionally had problems with their doctrinal construction.
LM Friedman, ‘The Law of the Living, the Law of the Dead: Property, Succession and Society’ (1966) 29 Wis L Rev 340; John Langbein, ‘The Nonprobate Revolution and the Future of the Law of Succession’ (1984) 97 Harvard LR 1108; John Langbein, ‘The Twentieth-Century Revolution in Family Wealth Transmission’ (1988) 86 Mich L Rev 722; François du Toit, ‘The Limits Imposed upon Freedom of Testation by the Boni Mores: Lessons from Common Law and Civil Law (Continental) Legal Systems’ (2000) 11 Stellenbosch L Rev 358; Dieter Henrich and Dieter Schwab (eds), Familienerbrecht und Testierfreiheit im europäischen Vergleich: Beiträge zum europäischen Familienrecht (2001); Nina Dethloff, ‘Familien- und Erbrecht zwischen nationaler Rechtskultur, Vergemeinschaftung und Internationalität: Perspektiven für die Forschung’ (2007) 15 ZEuP 992; JC Sonnekus, ‘Freedom of Testation and the Ageing Testator’ in Kenneth GC Reid, Marius J de Waal and Reinhard Zimmermann (eds), Exploring the Law of Succession (2007) 78; 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; Inge Kroppenberg, Privatautonomie von Todes wegen: Verfassungs- und zivilrechtliche Grundlagen der Testierfreiheit im Vergleich zur Vertragsfreiheit unter Lebenden (2008); DH Parry and R Kerridge, The Law of Succession (12th edn, 2009).