Law of Succession: Quo vadis?
Comparative research on succession law in transition
Does the law of succession reflect cultural differences? What happens when a deceased‘s last will contradicts basic societal values? How is succession determined in cases of “common calamities”? Contrary to the widely-held view that succession law is resistant to change, scholars at the Max Planck Institute for Comparative and International Private Law are detailing possibilities for the field’s further development in a number of comparative research projects.
Although the law of succession is one of the most important areas of private law, it is routinely neglected as a subject of comparative research. Institute Director Reinhard Zimmermann has made the topic a focal point of his research:
The Law of Succession in Comparative and Historical Perspective
Following the publication of a precursor volume titled “Exploring the Law of Succession”, Reinhard Zimmermann, together with Kenneth Reid (Edinburgh) and Marius de Waal (Stellenbosch), established an international research group dedicated to performing a historical and comparative study of key principles of succession law in 2010. The group’s first project examined testamentary formalities: “Comparative Succession Law I: Testamentary Formalities”, OUP, 2011; the second considered intestate succession: “Comparatives Succession Law II: Intestate Succession”, OUP, 2015. The third volume is currently being prepared; entitled “Comparative Succession Law III: Family Protection”, publication is expected in 2019, once again by OUP.
The work of the research group has been inspired by the observation that the law of succession has become a marginalized area of legal research. This holds true particularly with respect to comparative law research. When one inquires as to the reasons behind this reluctance, one encounters stereotypical references to the succession law’s grounding in a country’s national legal culture. In recent times, however, this traditional view has been challenged. Rather, succession law is to a significant extent part of a common European tradition, and various social and economic factors have in recent decades shaped all European succession systems. The law of succession has thus, in a number of respects, been subject to significant changes which are not confined by national borders.
Historical and comparative research that identifies common features and explains existing differences is thus as instructive in this area as it is, for instance, in respect of contract law. In a series of individual studies, Zimmermann has endeavoured to substantiate this view, among them “Das Verwandtenerbrecht in historisch-vergleichender Perspektive” [The intestate succession rights of the deceased’s relatives in historical and comparative perspective] (RabelsZ 2015), “Das Ehegattenerbrecht in historisch-vergleichender Perspektive” [The intestate succession rights of the deceased’s spouse in historical and comparative perspective] (RabelsZ 2016), and also “Does the Law of Succession Reflect Cultural Differences?” (Maastricht Law Series, Volume 1, 2018). Volume III of Comparative Studies in Succession Law provides a comparative analysis of the mechanisms with which legal systems attempt to balance freedom of testation and family solidarity, ie, in particular, compulsory portion, forced heirship, and family provision legislation.
Reinhard Zimmermann has published a further individual study authored together with Jakob Gleim, research assistant at the Institute. In their article “Presumptions of Survivorship or Simultaneous Death in Cases of ‘Common Calamity’ – Scots Law Against the Background of European Legal Developments” they consider the question of how succession is to be determined in cases of simultaneous death:
The Problem of Succession in Cases of “Common Calamity”
An entire family is killed in an air raid, two sisters in a room together die from smoke inhalation, or a young couple drowns in the South Pacific – in each case lawyers query in what order the victims died. While this question may seem macabre, it touches on the legally significant fact that one of the deceased may have inherited from the other. This, in turn, will be important to the surviving beneficiaries since the estate at issue may be considerably larger if the deceased from whom they inherit had himself inherited (if only very briefly) from one of the other deceased. But what happens when it cannot be determined who died first and who died last?
The question of survivorship had been considered even in the Roman era, with jurists developing presumptions which were applied in certain scenarios. For example, if parents died together with their children, when the children were still minors it was presumed that the parents died after the children. By con- trast, if the children were of age, the opposite presumption applied. Twentieth century English law settled on the presumption that the younger person generally died after the older one. In German law, however, it is assumed that all individuals perished at exactly the same moment. Although this is in fact the most unlikely of all scenarios, it has the legal advantage that none of the deceased has for a brief moment inherited from another.
The rules on survivorship in cases of common calamity touch on various underlying considerations: May the law favour the beneficiaries of one deceased party over the beneficiaries of another? What significance can be attributed to the presumed wishes of the deceased? Should legal presumptions reflect the factually most likely course of events? The essay addresses these questions by analyzing and comparing the past and present answers given by a variety of European legal systems. At the same time, Reinhard Zimmermann and Jakob Gleim are providing an assessment of the various solutions to the problem arising from death in a situation of common calamity.
The article can be accessed at SSRN.
An extended German version has appeared in (2018) 135 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung, 527-581.
It is not the question of who inherits, but how one inherits that stands at the centre of the post-doctoral dissertation of Dr. Jan-Peter Schmidt, research fellow at the Institute. In considering the topic of estate administration, he has focused on seldom researched aspects of the law of succession:
Administration of Estates in Historical and Comparative Perspective
It is not only laypersons but also experts who tend to consider the law of succession exclusively from an economic perspective, viewing its central task as the distribution of a deceased’s assets to his or her survivors. The associated legal questions that arise include the extent to which a testator is free to determine the beneficiaries of the inheritance and the distribution of the estate in the absence of a last will.
Yet in emphasizing the distributive dimension of succession law, its “implementation dimension” or “mechanics” are usually relegated to the background. How do rights actually transfer from the deceased party to other individuals? How is it ensured that the deceased’s creditors are not disadvantaged? How does the law deal with a designated heir who has no interest in succession on account of, for instance, a fear that the deceased’s debts may attach to his or her own assets?
In his Habilitationsschrift (post-doctoral dissertation), Dr. Jan Peter Schmidt employs a comparative and historical lens to examine these and other aspects of the overall event of succession under the umbrella term of “administration of estates”. He maps out the common regulatory challenges that are hidden under a confusing myriad of terms and legal constructions and shows how the resulting conflicts of interest can be resolved. At the same time, he makes clear that existing studies adopt an overly formalistic approach and are consequently of little value.
See also: European Court of Justice decision on the assertion of succession rights throughout Europe
In general an individual enjoys testamentary freedom and can draft a will as he or she choose. But what happens when a deceased’s last will violates social norms? This question is addressed in the doctoral project of Andreas Humm, research assistant at the Institute:
The limits imposed by fundamental values on freedom of testation – a comparative analysis
Considering in particular the law of Germany, England and South Africa, the dissertation studies from a comparative perspective the tension that exists between testamentary freedom and prevailing value systems, examining those instances when these legal systems, based on fundamental values, custom, and morality, oppose execution of what a deceased has set out in his or her last will.
The cases to be considered encompass a wide range of constellations, including the question of the extent to which the deceased may set conditions for succession, for example, by requiring a son to marry a certain person. Also addressed are the issues of estate distribution based on discriminatory standards, such as gender or ancestry, and the limits regarding a disinheritance that fails to comply with the statutory minimum participation contemplated for close family members.
In particular, the project explores the background behind each legal system’s body of law: Have legal developments in respect of custom and morality coincided with social changes or important historical events? Have political aims or policy objectives affected legal assessments? How broad is the influence of certain characteristics particular to a given legal tradition? Finally, the question arises as to whether the value-based limits imposed on the deceased are more national (or culturally) influenced, or whether they are rather an expression of a common system of values.