by Tobias Helms
1. Fundamental principles
Legacies are a key instrument of the law of succession (succession law) in all European legal systems allowing testators to leave another a benefit out of the estate.
a) ‘Two-track’ systems
Following Roman law concepts, most European legal systems (such as Germany, Greece, Italy, the Netherlands, Austria, Portugal, Switzerland, and Spain) allow testators to choose whether to appoint a beneficiary as either an heir or a legatee. These two forms of testamentary appointment can be clearly differentiated: an heir is someone who—either alone or together with other (joint) heirs—directly takes on the testator’s legal position as his universal successor (devolution of the inheritance/universal succession). While an heir thus has a direct interest in the testator’s entire estate and, as the universal successor, is obliged to take responsibility for the liabilities of the estate (liability of heirs), a legatee’s entitlement is restricted to the interest that the testator wished to grant him.
Some legal systems therefore include a rule of interpretation whereby persons allocated individual items from the estate are generally deemed to be legatees (Germany: § 2087(2) Bürgerliches Gesetzbuch (BGB), Austria: § 535 Allgemeines Bürgerliches Gesetzbuch (ABGB); Italy: Art 588 Codice civile; Spain: Art 768 Código civil). However, legacies need not be limited to individual items. Legatees can be granted a portion of the estate, or even the entire estate (universal legacy). In economic terms, whether a person is appointed as an heir or as a legatee, sometimes makes no difference. However, the distinction may be significant as to liability for debts of the estate (liability of heirs).
b) ‘One-track’ systems
By contrast, some European legal systems do not enable a testator to designate an heir in his will; a testator may thus only dispose of his estate by way of legacy or legacies. This approach derives from the Germanic law of succession, under which succession was based on kinship and dispositions by will were not recognized.
Adoption of the one-track model is a matter of course in those legal systems which do not adhere to the principle of universal succession (devolution of the inheritance/universal succession). For example, in England and the Nordic countries, rather than passing directly to the statutory or testamentary beneficiaries, an estate first passes to an administrator or trustee who settles all the liabilities of the estate (liability of heirs) and only distributes the debt-free residual estate to the beneficiaries. Taking this approach, the difference between heirs as universal successors and legatees as individual successors can be of no relevance.
In the other legal systems employing the one-track model, heirs are generally appointed by law rather than by the testator (eg Belgium, France and Romania). However, in such states the position of a legatee who receives a portion of the estate, or the entire estate (in contrast to a legatee who receives only an individual item), is typically comparable to that of an heir. This is particularly evident in the responsibility of such legatees for the estate’s liabilities (Belgium and France: Arts 1009, 1012 Code civil; Romania: Art 775 Codul civil).
c) Statutory bequests
Along with legacies created by testamentary disposition, some European legal systems also provide for statutory legacies, though these are of very limited practical relevance. In Germany and Austria, for example, surviving spouses have a statutory legal right to household items as well as wedding gifts: the so-called ‘preferential right’ (§ 1932(2) BGB (Voraus); § 758 ABGB). Additionally in Germany the deceased’s family members, who were part of his household at the time of his death and received maintenance from him, can in the first 30 days after the occurrence of the devolution of the inheritance demand maintenance from the heir, and will be allowed to use the home and the household items, to the same extent as had been permitted to them by the deceased: this is referred to as ‘thirty days maintenance’ (§ 1969 BGB (Dreißigster)).
2. Comparative overview
a) Formal requirements
Legacies can always be created by a will (Germany: § 1939 Bürgerliches Gesetzbuch (BGB); France: Art 1003 Code civil; Austria: § 647 Allgemeines Bürgerliches Gesetzbuch (ABGB); Switzerland: Arts 481, 484 Swiss Civil Code (ZGB); Romania: Art 887 Codul civil; Spain: Art 764 Código civil). Insofar as a legal system recognizes this device, they can also be made by means of a contract of inheritance (contracts of inheritance and joint wills; Germany: § 1941(1) BGB; Austria: § 1249 ABGB; Switzerland: Art 494 ZGB). If the testator later disposes of the object that has been left by way of legacy, the latter will normally be invalid (Germany: § 2169 BGB; Austria § 724 ABGB; France: Art 1038 Code civil; Spain: Art 869 no 2 Código civil).
Any natural or legal person can be a legatee. While some legal systems permit even persons not yet conceived to be named as beneficiaries of a legacy (Germany: §§ 2162(2), 2178 BGB; Italy: Art 462(3) Codice civile; Portugal: Art 2033 Código civil), others restrict the capacity to be legatee to persons already conceived at the time of the devolution of the inheritance (France and Belgium: Art 906(2) of their respective Code civil; Austria: § 647 ABGB).
The legatee’s claim in general arises at the moment of devolution of the inheritance (Germany: § 2176 BGB; Belgium: Art 1014(1) Code civil; France: Art 1014(1) Code civil; Greece: Art 1997 Greek Civil Code; Italy: Art 649 Codice civile; Romania: Art 899 Codul civil; Spain: Art 881 Código civil; Switzerland: Art 543(1) ZGB; Austria: § 684 ABGB). In some legal systems, however, the moment when a legacy can be claimed is delayed. Thus in Switzerland, a legacy can only be claimed after acceptance of the inheritance, or when the heir has lost his right to disclaim the inheritance (Art 562(2) ZGB). In Austria a legacy generally only falls due one year after the testator has passed away unless the testator has ordered otherwise (§ 685 ABGB).
Testators are largely unrestricted in determining the content of a legacy, as they enjoy freedom of testation. Typically, bequests tend to be individual objects belonging to the testator (cf Spain: Art 882(1) Código civil; Belgium and France: Arts 1014 ff of their respective Code civil; Romania: Arts 899 ff Codul civil; Switzerland: Art 484(2) ZGB). Under English law, the grant of individual objects is referred to as a specific devise (real estate), or specific bequest (chattels). The testator can also give a legatee the right to choose one of several items (Germany: § 2154 BGB (Wahlvermächtnis); Greece: Art 1973 ZGB; Spain: Art 874 Código civil; Portugal: Art 2267 Código civil; Switzerland: Art 484 ZGB).
In addition, it is often possible to designate a bequeathed object by class alone (Germany: § 2155 BGB; Austria: § 656 ABGB; Italy: Art 653 Codice civile; Portugal: Art 2253 Código civil; Spain: Art 875 Código civil; Switzerland: Art 484(1) ZGB). Such a legacy can oblige the person who is liable (usually the heir) to procure the object left to the legatee if it is not yet part of the estate (Germany: § 2170 BGB (Verschaffungsvermächtnis); Italy: Art 651(2), 652 Codice civile; Spain: Arts 861, 862 Código civil; Switzerland: Art 484(1) ZGB). Under English law, objects described by class are bequeathed by means of general legacies. Here the administrator or executor usually has to procure the relevant object within a year or otherwise pay its value to the legatee.
Should the testator by way of legacy leave an object which he mistakenly believes to be his own, the legacy is usually invalid. If, however, such a disposition is made with the testator being aware that he does not own the object, the heir will have to procure the object (Greece: Art 1984(1) Greek Civil Code; Italy: Art 651 Codice civile; Spain: Arts 861, 862 Código civil; Portugal: Art 2251(1) Código civil; Romania: Arts 906, 907 Codul civil). Very similar results are achieved in France through restrictive judicial interpretation of Art 1021 Code civil.
Legacies concerning a portion of the estate, or the entire estate, are different in certain respects as, economically, they are comparable to an appointment as an heir. Here, the legatee is granted either the entire estate, or its value, or a monetary sum amounting to a particular percentage of the value of the estate after its liabilities have been discharged. In cases where the remainder of the estate or a particular percentage is left, English law refers to residuary devises (in respect of real estate) or residuary bequests (in respect of chattels). Where a testamentary disposition which gives a person a portion of the estate or the entire estate is ambiguous as to whether this person is appointed as an heir or as a legatee, those legal systems that make the distinction (see 1. above) assume that appointment as an heir is intended (Germany: § 2087(1) BGB; Switzerland: see Art 483 ZGB). Still, however, the interpretation of the disposition may reveal the testator’s intention to make a bequest.
c) Effect on transfer of title
Under Roman law a distinction was drawn between the legatum per vindicationem, under which title to the object of the legacy is transferred directly, and the legatum per damnationem, where the legatee merely receives a personal right to claim what has been left to him. Some modern legal systems reject the legatum per vindicationem and only provide for the legatum per damnationem (Germany: § 2174 BGB; Switzerland: Art 562 ZGB; Austria: § 684 ABGB; the Netherlands: Art 4:117 Burgerlijk Wetboek (BW); Poland: Art 986 Kodeks zywilny (Polish civil code)). This is hardly surprising for legal systems of the Germanic legal family which follow the principle, with regard to movable property, that ownership normally passes with delivery of the object (Traditionsprinzip) and, with regard to real estate, that the passing of ownership requires entry in the land register (Eintragungsprinzip). In English law, this approach necessarily follows from the fact that the estate initially reverts to an administrator or executor, who only distributes the residual estate to the beneficiaries after having settled all the estate’s liabilities (liability of heirs).
In contrast the legal systems within the Romanistic legal family that adopt a system, under which title is transferred by way of contract (Konsensprinzip), recognize the legatum per vindicationem in addition to the legatum per damnationem (France and Belgium: Art 1014 of their respective Codes civil; Spain: Art 882 Código civil; Portugal: Arts 2249 ff Código civil; Italy: Art 649 Codice civile; Romania: Arts 888 ff Codul civil). As the legatee gains his right to the object left to him immediately upon devolution of the inheritance, a legatum per vindicationem can naturally only relate to individual, specifically determined objects or rights (such as claims) to which the testator was, in life, entitled. In comparison, legacies of objects described by class, or legacies which oblige the debtor to procure the object concerned, can only be legata per damnationem also under Romanistic legal systems. The fact that the legacy is a legatum per vindicationem does not mean that the legatee has the right to secure possession of the object left to him himself; he must instead claim possession from the heir, or the executor (France: Art 1014 Code civil; Spain: Art 885 Código civil; Belgium: Arts 1011, 1014(2) Code civil; Italy: Art 649(3) Codice civile).
Greek law, on the other hand, offers a choice: normally the legatee receives a legatum per damnationem under Art 1995 of the Greek Civil Code. However, a legatum per vindicationem will be taken to exist—insofar as the testator has not stated something different—under Art 1996, 1 of the Greek Civil Code, if the heir is charged with the legacy (rather than a legatee with a sub-legacy), and if the object concerned is a specific thing or right, and forms part of the estate.
d) Liability for the legacy
Usually it is for the testator to decide who will be liable to implement the legacy. Apart from all heirs, or an individual heir, legatees can also be liable for a legacy (known as a sub-legacy) (cf Austria: §§ 649, 650 ABGB; Switzerland: Art 484(2) ZGB; Spain: Art 858 Código civil). If the testator has not made a specific determination, liability will rest with the heirs (Germany: § 2147 S. 2 BGB; Greece: Art 1967(2) Greek Civil Code; Italy: Art 662 Codice civile; Portugal: Art 2265 Código civil; Spain: Art 859(2) Código civil; the Netherlands: Art 4:117(2) BW).
Some legal systems permit the creation, by the testator, of what is known as a reversionary legacy. In these cases, the first legatee will not be entitled to the object of the legacy indefinitely, but he has to transfer it to a third party, the reversionary legatee, at a particular point in time. The ability to create reversionary legacies is often subject to certain limitations, for example, as to time (Germany: §§ 2162, 2163 BGB). In Austria, § 611 ABGB provides that, so long as all persons appointed are contemporaries of the decedent, the number of reversionary legatees is not limited. If, on the other hand, the (reversionary) legatees are not born at the time of the appointment, a two-tier reversionary legacy can be created for legacies concerning money and chattels. However, only a single-tier reversionary legacy is permitted for bequests of real estate in such cases (§ 612 ABGB). Switzerland (Art 488(2), (3) ZGB) and Spain (Art 781 Código civil) in principle only allow the creation of single-tier reversionary legacies; in Spain only persons already born at the time of devolution of the inheritance can benefit from reversionary legacies. In France, so-called libéralités graduelles constitute a legal construct comparable to reversionary legacies (Arts 1048–1056 Code civil), although only of a single-tier character (Art 1053 Code civil).
The law relating to legacies is fairly similar in all European legal systems. The widespread consistency between the different legal systems may be ascribed to a consensus that legacies constitute a key device for exercising freedom of testation. Variations on individual issues can largely be explained because the rules relating to legacies must fit into the doctrinal framework recognized in a given legal system for succession law in general, and for the law of property.
R Schröder, ‘Vermächtnis’ in Franz Schlegelberger (ed), Rechtsvergleichendes Handwörterbuch für das Zivil- und Handelsrecht des In- und Auslandes, vol 7 (1940) 216 ff; Franz-Notker Lichtinger, Der Voraus im Erbrecht (2000); Rembert Süß, ‘Das Vindikationslegat im Internationalen Privatrecht’ (2001) 65 RabelsZ 245; Rembert Süß, Erbrecht in Europa (2nd edn, 2008); Murad Ferid, Karl Firsching, Heinrich Dörner and Rainer Hausmann, Internationales Erbrecht, 9 vols (81st edn, 2011); Walter Pintens (ed), International Encyclopaedia of Laws: Family and Succession Law (looseleaf).