Max Planck Society

Max Planck Institute for Comparative and International Private Law

Media Information
Online version Handwörterbuch des Europäischen Privatrechts
The limits imposed by fundamental values on freedom of testation – a comparative analysis

Research project by Andreas Humm

 

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.