Testamentary freedom versus family solidarity – What is the origin of the compulsory portion?
All European legal systems – as well as the non-European systems influenced by European law – provide for two kinds of succession upon death. A deceased can by means of a testamentary will or an inheritance contract determine who is to inherit his or her property and to what extent. Where there is no last will, the rules of intestate succession apply. Yet the freedom of testation is limited. What is today known as the “compulsory portion” is based on a long tradition. Institute Director Reinhard Zimmermann has examined the path of the compulsory portion, tracing its progression from a rule of Roman law to an element of modern civil codes.
“The question of whether a decedent can bequeath his property freely or whether such freedom is subject to the claims of his closest relatives has engaged European law scholars since antiquity”, says Zimmermann. Together with his colleagues Kenneth Reid from Edinburgh Law School, and Marius de Waal from Stellenbosch University, Zimmermann has established an international working group to study the law of succession in historical and comparative perspective. It is composed of 20 legal scholars hailing from many parts of the world. The cooperative effort has resulted in a series of globally focused comparative studies on succession law. The first two publications have addressed the topics of testamentary formalities and intestate succession. The subject of compulsory portions was considered in a third volume published in fall 2020. A German-language historical and comparative study of compulsory portion and forced heirship in Europe appears in the latest issue of the Rabel Journal of Comparative and International Private Law.
“The manner in which the Roman jurists set out to balance testamentary freedom and family solidarity was formative for the continental European legal tradition”, observes Zimmermann. “Towards this end they developed over time a number of remarkable concepts.” For instance, descendants were protected by certain formal requirements that prevented their being passed over by the testator; they had to be expressly disinherited in the will. Later, ancestors were required to allocate part of their estate to their descendants. Where this did not occur and where such omission could not justified by a valid reason, the person passed over assumed the position of the originally foreseen heir. Particular protection was bestowed upon widows to the extent that they were not otherwise adequately provided for. Alongside up to three children, widows received a fourth of the estate, referred to as the “quarter of the poor widow”.
Some of the regulatory concepts developed by the Roman jurists were very complex. The sixth century codification of this area of Roman law as enacted under the reign of the East Roman Emperor Justinian sought to unify and simplify the existing rules, but it failed to achieve this end. For hundreds of years there was considerable debate as to the basic principle and just about all details, and the pertinent commentaries became exceedingly long. It was therefore left to the draftsmen of the modern European civil codes to develop a set of coherent rules.
Accordingly, in Germany the next of kin obtain a compulsory portion entitling them to a claim for the value of a part of the estate, the BGB thereby embracing a model that had already been adopted by the Austrian Civil Code (ABGB). Under the French Code civil, a certain portion of the estate is reserved for the closest relatives in terms of a concept of forced heirship; such individuals thus become co-heirs. In England, by contrast, neither are such relatives mandatory heirs nor do they have a claim to a compulsory portion. Rather, the courts can allocate to them a family provision the exact amount of which is in the discretion of the court. The protection of close relatives under this rule is done with reference to existing needs.
Both the German/Austrian and the French model, the latter of which was highly influential for numerous legal systems in Europe over the course of the 19th century, can be traced back to Roman law. English law developed from other roots, though one finds a need-based approach also in the Roman sources. In any event, one of the enduring achievements of Roman jurisprudence is the development of two competing principles: testamentary freedom and a family solidarity extending also beyond death. With the adoption of both of these principles of Roman law, our modern legal systems have similarly inherited the task of reasonably balancing the resulting conflict of interest.