1. Definition and subject matter of the law of succession
The private law of succession regulates three separate legal issues. It achieves the transfer of the deceased’s personal property to those persons who are entitled to inherit; it makes provision for the order of succession (succession upon death); and finally, it encompasses the administration of property. In contrast, the law governing inheritance tax and provision for dependents by the state do not fall within the scope of the private law of succession.
An important matter regulated by the law of succession is the legal fate of the goods and debts of a natural person after death. Accordingly, the law of succession has a function of allocating a person’s patrimony. For that reason all succession law regimes provide for a modus of acquisition that effects the transfer of the testator’s property to his legal successor. In English law this central function explains why this field of law is named ‘law of succession’.
But law of succession is more than just the law allocating a person’s patrimony to those succeeding him. Every succession regime also regulates the order of succession. Testamentary succession leaves it to the testator to determine a suitable legal successor. It creates a legal framework for the exercise of the right to regulate one’s affairs by will. Testamentary succession is shaped by freedom of testation. However, private succession law systems also take into account the fact that not every person makes dispositions mortis causa. The (subsidiary) rules on intestate succession therefore determine the members of the deceased’s family who are entitled to inherit. They are called to be heirs if the deceased did not exercise his freedom of testation.
The third subject matter of the law of succession is the administration of property on behalf of the successors. In English law, administration and distribution of the estate are separate issues. There, the beneficiaries do not succeed the testator immediately upon accrual of the inheritance, and do not directly take his place (devolution of the inheritance/universal succession). In fact, the defendant’s successor is the executor or administrator of the estate, who is subject to fiduciary duties as the personal representative of the deceased. He alone is responsible for the settlement of debts, the administration of the estate and the disposition over assets contained therein. It is only when all debts of the estate have been discharged that the remaining property will be paid or given to the beneficiaries entitled by will or at law. The concept of a ‘community of heirs’ is therefore unknown.
2. History of the law of succession
The development of the law of succession is closely related to the functions it has fulfilled at different times. In line with the social structures in Europe, these functions have undergone fundamental changes. This process already started in antiquity. The transition from agricultural Italic communities to an urban culture, the expansion of trade, monetary transactions and other forms of accumulation of capital, as well as the political evolution of Rome into a global empire all supported the gradual rise of freedom of succession and its ascendancy over intestate succession. In medieval and early modern agrarian societies the law of succession assumed an additional function, ensuring not only the transition of private property but also political power. In the 18th century, family fideicommissa and entailed farm estates served as tools to concentrate economic and political power in one hand.
Two factors determined the subsequent change in the function of succession law in Europe: changes in family structures due to industrialization, and the separation of political and economic power in the course of the revolutionary movements. In France, the French Revolution eliminated this connection irreversibly. Discussions concerning the law of succession subsequently turned on the conflict between private freedom of disposition and the principle of égalité. In Germany, on the other hand, the upheavals of the 19th century did not succeed in entrenching the political rights of the individual. The freedom to inherit and bequeath property across the different classes within society replaced political freedom. Herein lies the root of the connection between property and the law of succession, which still remains anchored in the constitutions of many European states.
While the law of succession was necessary to strengthen the economic power of the individual citizen and became, alongside property, the basis for the expansion of trade and economic dealings, it was also faced with a dilemma in the Enlightenment period. Theoretically pioneered by John Locke, property was linked with the idea of creating value through labour and it could be freely alienated by contract between individuals who were equals in the eyes of the law. However, acquisition under the law of succession was the archetype of acquisition without labour and consequently constituted unverdientes Vermögen (‘unearned property’) (Jens Beckert). The law of succession had become a relic of a law based on status in a developing meritocratic and contractarian society. As Max Weber said: ‘The law of succession constitutes in contemporary society the most important survival of that mode of acquisition of legitimate rights which was once, especially in the economic sphere, the exclusive or almost exclusive one. It is based on operative factors generally occurring independently of the individual’s own conduct but constituting the starting point for his legally relevant activities inter vivos (Wirtschaft and Gesellschaft (1922) ch VIII, § 2).
Because of the importance of the law of succession for the economic activities between citizens, only few authors spoke out against acquisition by inheritance. Some attempted to reinterpret it as being based on a transaction inter vivos between testator and heir similar to a contract (Immanuel Kant, Wilhelm von Humboldt). Marxism, on the other hand, regarded the law of succession as an exploitative institution because of its tendency to concentrate assets and argued in favour of its total abolition. The codifications of the Enlightenment period in continental Europe, however, display no sign of such sentiments. All of them regard the law of succession as indispensable and regulate it in detail.
3. Social developments
The consolidation of the law of succession goes hand in hand with an increasing social importance for the transfer of property under the law of succession. Forecasts concerning the future size of estates show an increase in the size of estates that can be attributed to the rise in prosperity after World War II. As a consequence of demographic change, especially the decrease in the number of children in the European countries and the increased life expectancy, the favourable economic situation of the older generation has led to the transfer of sizeable estates to the younger ‘generation of heirs’. However, it must also be taken into consideration that inheritance does not lead to an increase in the prosperity of society as a whole, but rather to a redistribution of assets and in some cases to their concentration in individual persons. Also not to be neglected is the fact that the demographic change itself can lead to a certain reduction in the amount of property available to be inherited. People are living longer and thus have to spend more money on care in their old age. Finally, sociological studies have revealed that large estates are usually transferred within the upper income brackets. Therefore, not all social classes benefit equally from an inheritance boom.
The second fundamental change in the social foundations of succession law concerns the concept of family. It has been reduced to the so-called nuclear family and today refers to any cohabitating couple who have children, which need not necessarily be jointly conceived. During the period of industrialization at the latest, the family lost its function as a unit of production, acquisition and provision. The law of (family) succession nowadays only fulfils a maintenance function in respect of spouses. Children, on the other hand, often only inherit at a time when they are already independent economically. In contrast to surviving spouses, children are thus less reliant on acquisition by succession. In current succession law systems this is illustrated by the increasing significance given to the couple’s relationship through the expansion of statutory inheritance rights of the surviving partner at the expense of the children (succession upon death) as exemplified by the revised law of succession in the Netherlands. It is probable that this trend will be further consolidated, especially by the inclusion of unmarried couples. In many European succession regimes, same-sex partners are already de lege lata entitled to inherit.
The changes in the basic principles of succession law described above not only affect heirs but also testators. The fact that testators are living longer places particular demands on their dispositions mortis causa. Arrangements for the distribution of assets have become more and more complex. Owing to differentiated regulatory schemes inter vivos, testators have become more independent from the law of succession than they were in the past (freedom of testation). This appears to apply in particular to the Anglo-American legal systems, which view testation extremely favourably. There, dispositions of the estate mortis causa have a comparable effect to transactions inter vivos in view of the fact that acquisition occurs inter vivos in any case (devolution of the inheritance/universal succession). Finally, outside of continental Europe, it is not uncommon for a testator’s estate to contain certain assets that are easier to transfer inter vivos than upon death. In Germany, on the other hand, it is still primarily the ‘classical’ types of property, ie money and real estate that are inherited. Furthermore, as in other European states, family succession is relatively well accepted in Germany. Therefore, the right to a compulsory portion has been or is being reformed and consolidated in many places. In Germany there are plans to restrict it in the future. However, this does not mean that the law of succession will lose its function. The complexity of modern life is reflected in the legal relationships under the law of succession. Even putting aside the challenges posed by cross-border succession, these relationships are by no means of a purely national nature. Nevertheless, solutions to overarching questions are currently still developed on a country-by-country basis.
4. Trends in the evolution of the law
It is possible that a European regime on conflict of laws and civil procedure in succession matters (succession law (international)), or a substantive European law of succession would be better suited to deal with these profound social changes and to provide contemporary legal answers. However, the European Union still lacks the competence to align the substantive laws of the various Member States governing succession and wills. At the same time the efforts to harmonize the conflict of laws regime will probably have an effect on national succession laws. It would, therefore, be inappropriate not to give some thought also to the harmonization of substantive succession law.
Discussion of this topic is only in the early stages. The traditional view emphasizes the great differences between the national legal systems. These concern core questions of succession law, such as the method of property transfer, recognition of contracts of inheritance, and the concept of compulsory portion. The approaches are varied but probably do not reflect any fundamental differences in economic, political or even ethical convictions between different cultures. They are rather alternative solutions to the same central regulatory concerns and transnational social challenges that are faced by all succession law regimes. A more recent opinion, relying on the praesumptio similitudinis, disagrees with traditional orthodoxy and calls for historical and comparative groundwork (Verbeke/Leleu, Leipold, De Waal). This can only be undertaken here with regard to three institutions within the law of succession: plurality of heirs, unworthiness to inherit, and capacity to inherit.
5. Capacity to inherit
The capacity to inherit is a special aspect of the general principle of legal capacity. It is a condition for the acquisition of property under the law of succession in every European succession law regime, regardless of how the entitlement arises. Some legal systems, for instance those in Italy, Luxembourg and Spain, distinguish between absolute and relative incapacity to inherit. While persons absolutely incapable of inheriting are excluded from both testamentary and intestate succession, persons relatively incapable of inheriting are eliminated from the range of persons entitled to succeed only because the testamentary disposition appointing them as an heir is invalid. A distinction has to be drawn between the capacity of a natural person to inherit and the capacity to make a will, which is the succession law equivalent to the capacity to conclude transactions inter vivos.
Legal entities are capable of inheriting if they exist at the time of accrual of the inheritance. Some European legal systems make the capacity of a legal entity to inherit subject to other formal and substantive requirements. While the acquisition of inheritance is in some cases made contingent upon official state approval (always in Italy, in France for associations for the public benefit, in Luxembourg for legal persons of public law), in Spain certain associations or corporations not allowed by statute are incapable of inheriting. In Belgium legal entities can only inherit if this is permissible in accordance with their objectives. In France, which traditionally struggles with the concept of legal entities having the capacity to inherit, associations with petite personalité are not able to inherit. The English legal system, however, no longer recognizes such restrictions on acquisition ‘from the dead hand’.
A natural person has the capacity to inherit if he is alive at the time of the accrual of the inheritance, or has already been conceived and is subsequently born alive. This corresponds to the basic principle conceptus pro iam nato habetur, which has its origins in Roman law. In English law, if a beneficiary is a minor, an administrator will hold his inheritance in a statutory trust until the beneficiary marries, or turns 18. If the person dies before coming of age, he is viewed as having predeceased the testator. His share in the inheritance does not transfer to his heirs.
If two or more persons die, most European succession laws, including those in Germany, France, and the Netherlands, make provision for cases where it cannot be proved whether one person survived the other. In such cases none of the deceased is heir to the other. It is instead presumed that they all died at the same time (the presumption of commorientes). Again the problem is dealt with differently in England: if the time of death of several people cannot be determined, it is presumed that the younger person survived the older one.
6. Unworthiness to inherit
In European legal systems, unworthiness to inherit constitutes a ground for exclusion from succession. But the legal consequences differ. A person who is unworthy to inherit may be excluded from both testamentary and intestate succession, with the estate passing to the next beneficiary in line (Germany). Or unworthiness to inherit can be an instance of relative incapacity to inherit, as in England, Austria, Spain, Switzerland, and Portugal. Furthermore there are differences concerning the grounds for the unworthiness to inherit and its operation.
In most European legal systems (eg Germany, Greece, Spain, Portugal) unworthiness to inherit only applies if it is asserted in court proceedings and been established by way of judgment. In Austria, the Netherlands and Switzerland, on the other hand, unworthiness to inherit has ipso iure effect. France combines both models depending on the reason for unworthiness. Almost all European legal systems except for the Netherlands and Luxembourg recognize forgiveness by the testator as a basis for removing the effects of unworthiness to inherit. However, legal systems differ as to the way in which forgiveness must have been expressed.
Most European succession law systems recognize two types of grounds giving rise to unworthiness to inherit. They are rooted in the causes of ‘indignity’ in the Roman law of succession of imperial times: severe misconduct towards the testator, in particular homicide, but also certain slanderous accusations; and misconduct involving the suppression of dispositions mortis causa or the act of making a disposition mortis causa itself and infringing the testator’s freedom of testation. France, Belgium and Luxembourg are exceptions inasmuch as offences which infringe the freedom of testation of the testator do not entail unworthiness to inherit.
7. Plurality of heirs
As already stated above, only continental European succession regimes recognize communities of heirs (see 1 above). Several heirs of a testator form a compulsory temporary community, which administers the estate, disposes of assets contained therein and seeks to dissolve the community of heirs. During this time the estate remains separated from other assets. Continental European legal systems have different approaches to the legal status of the community.
German law views the community of heirs as a community ‘of collective hand’ (Gesamthandsgemeinschaft). It is characterized by the fact that there are no rights to a fraction or share concerning any of the individual assets, of which the heirs might dispose. However, each heir does own a share in the estate as a whole. In principle, therefore, the community of heirs can dispose of the assets belonging to the estate jointly. Concerning the administration of the estate the principle of unanimity applies. The members of the community of heirs can demand the dissolution of the community at any time. In Austria the community of heirs is formally a community of part-owners, administered on the basis of majority vote. However, it also features characteristics of a community ‘of collective hand’ insofar as the disposition of individual assets can only be made jointly. The Belgian and French concept of indivision is a sui generis community. It is reminiscent of a community of part-owners, because each member of the community owns a share in the individual assets. The partition of the estate (partage) is carried out by the co-heirs themselves, or by a court. Directions by the testator as to how the estate has to be apportioned are impermissible.
Walter Pintens, ‘Die Europäisierung des Erbrechts’ (2001) 9 ZEuP 628; David J Hayton, ‘The Problems of Diversity’ in DJ Hayton (ed), European Succession Laws (2nd edn, 2002); Jens Beckert, Unverdientes Vermögen: Soziologie des Erbrechts (2004); Sjef van Erp, ‘The New Dutch Law of Succession’ in Kenneth GC Reid, Marius J de Waal and Reinhard Zimmermann (eds), Exploring the Law of Succession: Studies National, Historical and Comparative (2007) 193; Marius J de Waal, ‘A Comparative Overview’ in Kenneth GC Reid, Marius J de Waal and Reinhard Zimmermann (eds), Exploring the Law of Succession: Studies National, Historical and Comparative (2007) 1; DH Parry and R Kerridge, The Law of Succession (12th edn, 2009); Reinhard Zimmermann, ‘The Present State of European Private Law’ (2009) 57 Am J Comp L 479, 503; Reinhard Zimmermann, ‘Nemo ex suo delicto meliorem suam condicionem facere potest’: Kränkungen der Testierfreiheit des Erblassers—englisches im Vergleich zum kontinentaleuropäischen Recht’ in Festschrift Klaus J Hopt (2010) 269; Alain-Laurent Verbeke and Yves-Henri Leleu, ‘Harmonisation of the Law of Succession’ in Arthur S Hartkamp and others (eds), Towards a European Civil Code (4th edn, 2011) 459.