Laws of Succession in Europe and Estonia: How We Got to Where We Are and Where We Should Be Heading
| Author | Urve Liin |
| Pages | 114-124 |
Urve Liin
Laws of Succession in Europe and Estonia: How We Got to Where We Are and Where We Should Be Heading
Generally, succession law does not develop by rapid and radical changes, as for example, does contract law. Usually succession law evolves in long gentle waves, by baby steps, so that profound change may only be appreciated, in retrospect, after long periods have elapsed. This may be due to the fact that succession law does not have to respond to the more usual and more rapid changes of business and economic practices and necessities. Its roots reach deeper into fundamental concepts of justice, morals and society2.
This does not mean that economic changes never influence succession laws. Of course, inheritance was and had to be organised in quite different ways in an agrarian society, let alone in subsistence economies, as compared to the needs of an industrial society. In Europe, however, those necessary adoptions were already achieved by the great codes and developments of the 19th century3.
The great codes in Europe are children of the 19th century, the Austrian ABGB even to a large extent of the late 18th century. They reflect the social and economic situations of their time. But it does not seem that the subsequent economic developments were significant enough to impose further fundamental re-orientations in succession law4.
In Estonia and other so-called developing economies the situation in this respect is entirely different. The changes in the Estonian law of succession that were effected with the passage of the new Law of Succession Act (LSA) on 15 May 1996, are sweeping, particularly as compared to the earlier statutory provisions dealing with rights of inheritance contained in the Civil Code of the Estonian Soviet Socialist Republic (ESSR). Though the changes can be appreciated in purely quantitative terms - whereas the civil code of the ESSR contained 35 sections devoted to succession, the new Estonian statute runs to 174 sections, the changes from the previous law are radical in their substantive provisions as well.
Radical changes of this scope and magnitude in the law of succession are explained by the fact that laws of succession, as they existed in socialist society, were different and unique. They can even be characterised as simplified to the maximum extent possible5. The absolutely minimal regulation of legal issues of succession is based primarily on the essential fact that property rights of the individual citizen in socialist society were severely circumscribed. Property that was capable of being inherited or passed by bequest, was small and of relatively slight value. In addition, it is important to note that in socialist society inherited property was not viewed favourably, as property received without the individual having to work for it, which encourages egoism and accumulates undue wealth into the hands of a privileged few. It was for these kinds of reasons that, under Soviet law, the designation of persons lawfully permitted to inherit from a deceased's estate was rather limited6.
In August 1991, following the restoration of Estonian independence, Estonia reasserted as a central feature of its market economy and democratic society, the right to own property, which, by its very nature and from its very origin, implies the right to inherit ? "private law has always included succession law"7. The law of inheritance and succession is, in this respect, as lawful or unlawful as private property itself8. Through succession and inheritance, private property asserts and achieves its true character, as succession makes private property "perpetual". Since succession laws permit private citizens to make provisions regarding their property upon death, it provides them complete freedom to exert dominion and control over their property even after death9.
Under principles of classical liberal thinking, the right to own property is the very foundation of financial independence and true personal freedom of action. Liberalism requires the acceptance of private inheritance and succession, because it ensures the perpetuation of private property even in the event of death10. For this reason, provisions regarding the protection of private property rights and succession rights are usually found in close proximity to one another in the constitutions of democratic countries11.
Accordingly, in 1992, when Estonia prepared its draft law on succession and inheritance, law-makers embarked on this effort with the above noted axiom clearly in focus ? that the law of succession, like the law of property, should remain relatively static. For this reason, lawmakers relied upon the draft Civil Code of the former Republic of Estonia, dating back to 1940, as source material for preparation of both the new law of property as well the law of succession. The law of succession contained in the 1940 draft Civil Code was largely influenced by the German BGB, but also by the Swiss, Austrian and Italian civil codes. A great deal was also borrowed from the Baltic Private Law Code (BPLC)12.
On the one hand, a return to laws that existed prior to the incorporation of Estonia into the Soviet Union is entirely understandable and logical. After the fall of communism, many Central and East European countries felt the strong desire to restore the legal systems and traditions that existed before World War II, as the starting point for development of current bodies of private law13. One such example would be Latvia, which, in 1992, re-enacted the complete civil code from 1937, i.e. from before World War II14. Thus, though the succession laws of both Baltic countries originate from the same legal foundation (BPLC) and were first enacted in similar time frames, their substantive provisions are markedly different in many respects.
On the other hand, it is not possible to consider such complete restoration of pre-World War II era civil codes as being a shining success in the development of law. Though succession laws in the countries of Western Europe have changed relatively little during the post-war period, they have not remained altogether stagnant. On the contrary, the last few decades have seen the incorporation of many needed changes as part of the reform of succession laws, in Europe as well as in the rest of the world.
Reforms in the last half-century in Europe have concentrated on increasing the inheritance rights of the surviving spouse and on placing children born outside of marriage on an equal legal footing with children born of marriage. These changes, for example, are the main subjects of the Austrian statute of 1989, the French draft bill of 1995, the German Acts of 1969 and 1973, the Swiss Act of 1984 15 , and the Finnish Acts of 1965 and 198316.
Probably the one overriding common tendency in the development of succession law during the last decades is the establishment of equal rights for children born outside of marriage. An often-used argument is or was that children should not be forced to bear the consequences of their parents' actions. As informal family structures, especially non-marital cohabitation, become a more accepted way of life, there will be less need and opportunity for society to make distinctions between married and unmarried couples17.
It is clear, however, that Estonian law poses no problem with regard to children born outside of marriage. The right of Estonian children born outside of marriage to inherit equally with those born of married parents was guaranteed under Soviet law, as it was in other socialist countries, and the same provisions were incorporated into the current Estonian law of succession18.
Among the current issues, in the further development of Estonia's succession law, is the matter of protecting the legal rights of the surviving spouse. Jurists from the University of Amsterdam arrived at that conclusion, following their expert review and critique of the Estonian draft law. Their analysis of the Estonian provisions for protection of the surviving spouse, led them to conclude that the law does not guarantee the surviving spouse the necessary standard of living, and, if the married couple has not made suitable arrangements in the event of the death of one spouse, the survivor can be left destitute. The debate among legislators considering the draft law in the Estonian parliament did not particularly focus on this aspect of the statutory scheme, and they did not revise the draft law before passage, despite the critique provided by the Dutch experts.
This lack of concern is even more surprising considering that in the preparation of the draft law, the drafters had the clear intent to create for the surviving spouse generous provisions regarding inheritance. Following the adoption of the current law of succession, one of the primary authors of the statute, E. Silvet, as well as the counsel to the Parliamentary Legal Affairs Committee, H. Reinberg-Rits, stressed on several occasions that the Estonian succession law provides many advantages to the surviving spouse19. Unfortunately, this is true only to the extent that one directly compares the current law of succession with the statute that was operative before 1940, i.e., with the BPLC and the state of succession law in Europe before World War II. This means that, in reality, the Estonian law of succession has remained unchanged in its...
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