Testamentary Freedom Research Articles

The Family and the Elderly in Spanish Society: The Exercise of Testamentary Freedom When the Testator Reaches the Age of Eighty

The rules that in the civil legal systems regulate the succession upon death, highlight the conception that every legal text has about individual freedom, and also about the family. The variety of Spanish civil laws includes very different systems on the compulsory portion. And this shows up (because of that), that variety of conceptions. This paper analyzes the disinheritance as an exercise of the testamentary freedom to deprive the compulsory portion to certain relatives. The research aim is to show the differences and the common points between Spanish civil laws and to propose some legal reforms. The research method used consists on the analysis of the most relevant statistics about the Spanish population and on the most frequent decisions of the elderly regarding their descendant’s inheritance. Also, last year main judicial decisions and the authors’ opinions have been analyzed.

Testamentary Freedom and Family Protection in Scotland

In a sense, testators in Scotland are free to do as they please, for a will is not challengeable on the ground of having failed to provide for children, or a spouse, or some other relative. Yet, regardless of what a will says or does not say, a child or spouse of the deceased is entitled to a fixed share of the deceased’s estate. Since 1964 this has been confined to the deceased’s movable estate and there is no claim in respect of immovable property. Where a deceased is survived by both spouse and children, the movable estate is divided into three – one-third for the spouse, one-third to be shared among the children, and one-third to be disposed of in accordance with the will. Where only a spouse, or only children, survive, the division is into two equal parts and not three. These ‘legal rights’ of the children and surviving spouse are personal rights against the executor of the deceased and are satisfied by payment in money. This paper considers the history of legal rights in Scotland, their scope and calculation, the rules on discharge, the requirement to collate lifetime advances, and the requirement to choose between legal rights and an express bequest in the will. Legal rights are of medieval origin, and have survived various attempts to change them. In recent years, the position of children has been seen as especially controversial. On one view, children should have merely a maintenance claim from the deceased’s estate, in cases of proved need. On another view, a child’s position in the family should continue to be recognised by means of a fixed share in their late parent’s estate. In the absence of consensus on this issue, the Scottish Government has recently rejected a package of reforms proposed by the Scottish Law Commission. Uncertain as to what the future should hold, Scotland has chosen to stick with rules developed, unthinkingly, in the distant past.

Indefeasible Family Rights: A Comparative View on the Restrictions of Testamentary Freedom

Testamentary freedom and family protection in succession law are often described as contradictory principles. Nonetheless, in most European legal systems both principles coexist. This article focuses on three conceptions of this coexistence: legal rights in Scotland, compulsory portion in Germany and family provision in England. All three systems must accommodate changing values of family life in modern society. Most recently, the timeliness of traditional solutions has been a controversial topic of the debate leading to the Succession (Scotland) Act 2016, and it continues to be an issue of debate, because regarding legal rights no final solution has been found. A comparative analysis can demonstrate the interconnectedness between social values and legal concepts, and it can further identify potential for legal innovation. Family rights, especially in Germany, have been contextualised with a historic notion of family property. In the present law of all three countries the contextual emphasis shifts towards familial solidarity and a moral duty to provide for family members. On a concrete level, there is a discernible connection between matrimonial property relationships and spousal rights to the estate in Germany and England, which in Scotland is no longer present. Further, the English system can also accommodate cohabitants as potential claimants. Scots law has at least in the case of intestacy incorporated a similar provision, while German law thus far does not provide any legal concept for cohabitation.

Prawo inspirowane życiem — nowy czeski Kodeks cywilny regulacja prawa spadkowego

Life inspired bill for life — the new Czech Civil Code Inheritance LawThe paper aims at investigating how the Czech Republic member of the European Union deals with the problem of recodification of the Civil Law after political system transformation. The paper presents changes in Inheritance Law that strengthening testamentary freedom and modify the pur­view of family protection.

Testamentary Freedom Reaffirmed in the Supreme Court

The case now known as Ilott v The Blue Cross [2017] UKSC 17 was the first time that the Inheritance (Provision for Family and Dependants) Act 1975 was considered at the highest judicial level. The Court of Appeal ([2015] EWCA Civ 797, noted [2016] C.L.J. 31) had significantly enhanced the award given to an estranged and “disinherited” but needy daughter (Heather Ilott) at the expense of the charities (the Blue Cross, Royal Society for the Protection of Birds and Royal Society for the Prevention of Cruelty to Animals) who were the principal beneficiaries under her mother (Melita Jackson)’s will, leaving her with £143,000 out of the £486,000 estate primarily to purchase the council house in which she and her family were living. The Supreme Court unanimously allowed the charities’ appeal, restoring Judge Million’s original £50,000 order. Giving the lead judgment, Lord Hughes reasserted the centrality of testamentary freedom in English Law, emphasised the importance of the Act’s limitation to “reasonable financial provision” for maintenance for non-spouse/civil partner applicants (s. 1(2)(b)), and held that a need for maintenance was a necessary but not sufficient condition for a successful claim. He approved previous case law in holding that maintenance could not “extend to any or everything which it would be desirable for the claimant to have”, but was not limited to “subsistence” either. He also confirmed that the focus of the correct test under the 1975 Act is not on the behaviour of the testatrix, but opined the reasonableness of her decision may still be a significant consideration, as may the extent of any “moral claim” even if that is not a “sine qua non”.

TESTAMENTARY FREEDOM REAFFIRMED IN THE SUPREME COURT

The case now known as Ilott v The Blue Cross [2017] UKSC 17 was the first time that the Inheritance (Provision for Family and Dependants) Act 1975 was considered at the highest judicial level. The Court of Appeal ([2015] EWCA Civ 797, noted in [2016] C.L.J. 31) had significantly enhanced the award given to an estranged and “disinherited” but needy daughter (Heather Ilott) at the expense of the charities (the Blue Cross, Royal Society for the Protection of Birds and Royal Society for the Prevention of Cruelty to Animals) who were the principal beneficiaries under the will of her mother, Melita Jackson, leaving her with £143,000 out of the £486,000 estate primarily to purchase the council house in which she and her family were living. The Supreme Court unanimously allowed the charities’ appeal, restoring Judge Million's original £50,000 order. Giving the lead judgment, Lord Hughes reasserted the centrality of testamentary freedom in English law, emphasised the importance of the Act's limitation to “reasonable financial provision” for maintenance for non-spouse/civil partner applicants (s. 1(2)(b)), and held that a need for maintenance was a necessary but not sufficient condition for a successful claim. He approved previous case law in holding that maintenance could not “extend to any or everything which it would be desirable for the claimant to have” (at [14]), but was not limited to “subsistence” either (at [15]). He also confirmed that the focus of the correct test under the 1975 Act is not on the behaviour of the testatrix, but opined the reasonableness of her decision may still be a significant consideration, as may the extent of any “moral claim” even if that is not a “sine qua non” (at [20]).

Post-mortem privacy 2.0: theory, law, and technology

ABSTRACTThis paper builds on the general survey of post-mortem privacy set out in the author’s earlier work. The concept of post-mortem privacy is further developed both at a theoretical level (underpinned by theories of autonomy) and a doctrinal level (considering concepts such as testamentary freedom, and the protection of personal data). Finally, the paper looks at some current developments of technology (tech solutions for the protection of post-mortem privacy) and law/policy (work done by the US Uniform Law Commission on the Uniform Fiduciary Access to Digital Assets Act – UFADAA). The argument is that both of these regulatory modalities provide examples and illustrations of how post-mortem privacy can be recognised practically, especially in the online environment. The paper is, therefore, setting the scene further in this under-explored area, also aiming to set the basis for the author’s subsequent empirical research (attitudes towards post-mortem privacy, quantitative and qualitative).

The curtailment of testamentary freedom in the making of Wills in Nigeria

The curtailment of testamentary freedom in the making of Wills in Nigeria

Cultural Considerations in Will-Making in Australia

There are major legal and cultural differences across countries in principles guiding intergenerational transmission of wealth, and individual differences in views on inheritance.1 Australian succession law is based upon English common law, starting with the presumption of testamentary freedom, which allows a testator to dispose of their estate as they see fit. However, this freedom can be limited by family provision laws that allow 'eligible applicants' to contest distributions on the basis of insufficient provision in accordance with legislation of the particular State or Territory. Hence, the legal framework represents a balance between testamentary freedom and familial obligation. Internationally there are significant cultural and legal differences in the degree of will-makers' testamentary freedom.

Another Perspective on Testamentary Arbitration

The American law of succession is remarkable both for its expansive concept of testamentary freedom and for its antiquated and cumbersome probate system. In principle, a testator enjoys virtually unlimited freedom to dispose by will of property owned at death, but enforcement of the testator’s directions generally requires a proceeding in a probate court to prove the will and appoint an executor to administer the estate. To avoid the expense and delay of court proceedings, transferors routinely use revocable trusts and other devices that replicate the effects of a will but operate outside the probate system. Moreover, some transferors seek to prevent their wills and trusts from becoming embroiled in litigation by requiring that disputes be resolved by private arbitration. The twin phenomena of probate avoidance and mandatory arbitration clauses stem from a common desire on the part of transferors to control the process as well as the substantive terms governing the disposition of their accumulated wealth. While transferors are generally free to dispose of property during life or at death without unnecessary court involvement, mandatory arbitration clauses raise controversial questions of enforceability and procedural fairness.

Limits on testamentary freedom for people with dementia in Albania: Innovative Practice.

The extent to which dementia affects a person's testamentary capacity has been the subject of much litigation with some countries introducing legal tests to assess capacity. In light of substantial societal change in Albania in the last two decades and an epidemic of property litigation, Albanian legal practice is witnessing an increasing number of attempts to posthumously nullify wills. Plaintiffs are mainly relatives of the deceased testator who are unhappy with the quantity or quality of the property they have inherited. Based on plaintiffs' claims, solicitors may request expert neuropsychiatric reviews postmortem, often basing their position on prescription drug use by the testator during his/her last years of life. The authors discuss ethical issues intrinsically related to the difficult role of a potential expert witness in these litigation cases.

Discrimination in Wills and Trusts

What are the limits of testamentary freedom? At one time this topic was dominated by concerns over protecting the living from the “tyranny of the dead hand” through rules such as the rule against remoteness of vesting. Concerns of this nature remain with us but have waned considerably in their perceived importance. Today, objections are more likely to be raised over the substance of a testator's control over property than over the duration of that control. Substantive objections are admittedly not a new phenomenon as the law has long since formalized rules prohibiting settlors of trusts from abusing the rights of property by inducing beneficiaries to commit crimes, get divorced or engage in other behaviour contravening the policy of the law. What has changed is that evolving human rights and equality norms raise the possibility of a new basis for substantive objection, specifically the idea that discriminatory testamentary dispositions are void because they violate an established public policy against discrimination. Few values can lay claim to either the normative force or instinctive appeal of equality. And yet this paper (focusing on Anglo-Canadian common law) contends that a common law rule prohibiting discrimination in private trusts has yet to crystallize. The recent decision of the New Brunswick Court of Queen’s Bench in McCorkill v McCorkill Estate has, however, brought this issue to the forefront. The Court in McCorkill Estate took the highly unusual, perhaps unprecedented, step of striking an unconditional bequest based on the bad character of the legatee and the discriminatory uses it would most certainly make of the bequest. This paper contends that McCorkill Estate has a great potential to significantly change the law (and not necessarily for the better) by shifting the historical focus away from the character of testamentary dispositions and toward the character of beneficiaries.

A Crisis of Legitimacy: Defining the Boundaries of Kinship in the Low Country during the Early Republic

From the northern middle-class household to the southern slave market, historians of the antebellum United States have broken through the ideological walls dividing the public and private spheres, revealing the inseparability of home and market. Less attention has been paid to the ways that elite Southern men espoused the values of paternalism and domesticity while defying them in practice through their creation and maintenance of interracial households. This article analyzes the culture of inheritance within the Simons family of Charleston, South Carolina, during the early republican period. These five Ashkenazic Jewish brothers moved from England to the Low Country in the years surrounding the American Revolution and became wealthy merchants, land speculators, and slave owners. Like the planters they emulated, they had sexual liaisons with enslaved and free women of color and kept close ties with their mixed-race children. Through the power of testamentary freedom, the Simons men openly recorded their own definition of legitimacy and expected the state to support their wishes. Their choices triggered three court battles through which African American women, slaveholding siblings, cousins, and illegitimate children battled for their share of the fortune, using ideas about dependency, racial identity, and religious affiliation to shape their appeals to the community and the courts. These cases tested the limits of property rights as a marker of kinship, legitimacy, and freedom.

Testamentary Freedom and its Restrictions in Civil and Common Law Jurisdictions

Testamentary Freedom and its Restrictions in Civil and Common Law Jurisdictions

Tipping the Scales in Favor of Charitable Bequests: A Critique

The public policy favoring testamentary bequests to charities is well established in the law. However, that public policy can, and does, conflict with other equally well-founded public policies. When confronted with this conflict, courts are often dismissive or even hostile towards the parties seeking to challenge a testamentary bequest to a charity. I argue that the policy favoring charitable giving has gone too far and has, in some instances, undermined other important public policies. Specifically, courts and legislators have strengthened the charitable bequest policy without giving enough consideration to other, equally important public policies. This problem is not new. History shows that similar policy conflicts have arisen periodically since late antiquity, if not earlier. The parameters of the problem, however, are somewhat new. The governing law, available technologies, and familial relationships have certainly evolved since the time of late antiquity. This article examines how the public policy favoring charitable bequests conflicts with various aspects of the equally important public policies of testamentary freedom and family protection.

Testamentary Succession, New Technologies and Recodification: On the Research that Needs to Be Conducted

In view of the fact that one of the main tasks of modern inheritance law is to connect the available legal structures with the shape of property relations existing in the society and to favour solutions which enable to make the most of the testator’s estate after his or her death, the author concludes that a research needs to be conducted to examine what consequences in this field of law follow, inter alia, from the wide availability of audio and video digital recorders, and what are legal consequences of registering the last will of the testator using such equipment, e.g. if in such context, can we call a videotestament a newly developing form of estate disposition. In this scope projects should search for connections between the above-indicated technical equipment and the possibilities of fulfilling the last will of the testator, to analyze if they may be useful for applying the principle of testamentary freedom present in inheritance law and to explain if the application of such equipment by the testator will facilitate or hinder the execution of testator’s will mortis causa.

The Law of Succession: Testamentary Freedom. European Perspectives, edited by M. Anderson and E. Arroyo i Amayuelas

The Law of Succession: Testamentary Freedom. European Perspectives, edited by M. Anderson and E. Arroyo i Amayuelas

Imperative part of the Law on Kosovo Inheritance (Comparative view)

Making a testament seems to be one of the available freedoms, and most significant of the law subjects. Testament, as final declaration of the testator’s will, is considered to be one of the most significant freedoms of the same, since by declaring his will, determines the fate of his/her property heritage, earned with lots of efforts throughout life.Freedom of compiling the testament, in the Constitution of the Republic of Kosovo is guaranteed by the Law on Inheritance in Kosovo but also by the international Conventions. However, every subjective right has its limits. Such limitation comes as a result of the care toward subjective rights of other persons, sometimes the best of the society, but the purpose of limiting such freedom in terms of inheritance, comes as result of common marital life, as a result of the care toward children and parents. Quota of the obligatory part is part of heritage that shall not be deprived, since it is guaranteed with imperative norms.This inheritance quota is presented as object for analyses and study in relation to testamentary freedom, always in a comparative view in the region and broader.

Till Death Do Us Part: Testamentary Manumission in Seventeenth-Century Lima, Peru

This article joins a long-standing conversation among slavery scholars regarding the tensions that emerged from the legal status of slaves as property and as persons. This feature of quasi-personhood and property was perhaps most pronounced in the testamentary devise of freedom granted by slave owners. Posthumous bequests of freedom simultaneously recognised the property rights of the deceased in human beings, while validating the affective ties of loyalty and devotion spawned by the master–slave relationship. The article traces the efforts of Margarita de Torres, an enslaved woman, who waged a nine-year lawsuit for her freedom against the executrices of her owner's estate. In so doing, the article analyses Margarita's motivations for embarking on a protracted and costly lawsuit, given the odds in favour of, and against, slaves seeking to enforce testamentary promises of manumission in seventeenth-century Lima. More broadly, the article explores the affective relationships between owners and slaves, the conditions that accompanied testamentary freedom and the complexities that arose with the legal treatment of enslaved offspring of free fathers.

Wills, Adoptions and Inter Privatos Human Rights Effectiveness

In Judgement of 27th April 2010 the Constitutional Spanish Court sustained that lower Courts, interpreting a testamentary clause that included only the biological offspring, had committed a break of the principle of equality. This article tries, on the one hand, to demonstrate that the issue lacks constitutional relevance, as the equality between biological and adoptive offspring is a legal requirement yet not a constitutional one. On the other hand, it explores the question of whether testamentary freedom can be limited by other rights, and in particular, by the principle of equalityIn Judgement of 27th April 2010 the Constitutional Spanish Court sustained that lower Courts, interpreting a testamentary clause that included only the biological offspring, had committed a break of the principle of equality. This article tries, on the one hand, to demonstrate that the issue lacks constitutional relevance, as the equality between biological and adoptive offspring is a legal requirement yet not a constitutional one. On the other hand, it explores the question of whether testamentary freedom can be limited by other rights, and in particular, by the principle of equality.