On the Development and Objectives of Statutory Share Law in Estonia

Author:Urve Liin
Position:Assitant of Civil Law, University of Tartu

1. The concept of testamentary freedom and an overview of the development of this testamentary freedom in the European and Estonian legal arenas - 2. Who is entitled to a statutory share under the Estonian law? - 3. About the reform plan of Estonian statutory share law - 4. Summary


Urve Liin

Assitant of Civil Law, University of Tartu

On the Development and Objectives of Statutory Share Law in Estonia

The Estonian law of succession as a whole is unarguably a part of continental European legal culture and essentially follows the traditions of German law. But it is not a one?to?one copy of German law. It has been influenced by Swiss and other law. For example, the procedure by which a successor acquires the estate under the Estonian law of succession is similar to the estate acceptance system recognised in Italian law1.

The same may be said at the moment about the Estonian statutory share law. It has a distinct continental European basis, while being a unique mix of different families of law. The provisions of the Estonian Law of Succession Act regulating the statutory share have been influenced by German law but have characteristics of the French family of law as well, and the Soviet law that was earlier applicable in the Estonian territory. Following the latter's example, the Estonian law of succession relates the entitlement to a statutory share to the entitled person's incapacity for work, as was provided in § 540 of the former Civil Code of the Estonian Soviet Socialist Republic2. According to § 104 of the Law of Succession Act3 (LSA), in effect since 1 January 1997, the ascendant or descendant or surviving spouse of the deceased is entitled to a statutory share only if incapacitated for work at the time of the opening of the succession.

The criterion of incapacity for work as a basis for entitlement to a statutory share has, however, caused practical problems and disputes, which have even gone so far that the Supreme Court en banc had to put forth a view. Namely, in the course of constitutional review proceedings on 19 October 2004, the Civil Chamber of the Supreme Court en banc raised a question to the Supreme Court en banc -- that of assessing the conformity of LSA § 104 to § 32 of the Constitution4 in conjunction with § 11 of the Constitution5 and to answer the question of whether the entitlement to a statutory share of the persons listed in LSA § 104 who do not need assistance, including persons factually capable for work, is in line with the principle arising from § 32 (4) of the Constitution that the right of succession is guaranteed6.

In its decision of 22 February 2005, the Supreme Court reached the conclusion that there was no contrariness to the Constitution, because LSA § 104 can be interpreted so that the entitlement to a statutory share applies to only such persons listed in LSA § 104 as are actually in need of assistance and are not able to earn a living due to factual incapacity for work7. The Supreme Court en banc found that 'testamentary freedom, like inviolability of property in general, is not an unrestricted fundamental freedom. According to § 32 (2) of the Constitution, everyone's right to freely possess, use, and dispose of his property may be restricted
by law. As testamentary freedom is an expression of the freedom to dispose of property, it can be restricted by law; i.e., it is a fundamental freedom with a simple reservation by law. Therefore, the legislature is entitled to restrict testamentary freedom in the public interest for purposes that do not contradict the Constitution.'8

Over past decades, statutory share law has been one of the world's most debated issues concerning law of succession, alongside the spouse's right of succession. An optimal solution is being sought everywhere to the problem of the extent to which the restriction of a person's testamentary freedom corresponds with today's understanding of the family and the purposes of the right of succession. That is why the discussion that follows first examines the concept of testamentary freedom, its historical development, and the purposes of the right to a statutory share in general. This is followed by an analysis of the statutory share law applicable in Estonia and plans for its reform.

1. The concept of testamentary freedom and an overview of the development of this testamentary freedom in the European and Estonian legal arenas

The Estonian Constitution guarantees the right of succession (§ 32 (4) of the Constitution), which inter alia means that everyone can make such dispositions for bequeathing his property as he wishes. It is indeed so in most cases, but no freedom is absolute or unrestricted. A person making a disposition on his property, effective on his death, has to take into account both the general established legal procedure and good morals, as with any other transaction (§ 86 of the General Part of the Civil Code Act)9.

Some restrictions to testamentary freedom arise from the very nature of the law of succession; according to these restrictions, certain dispositions are considered impermissible as they do not comply with the law and are hence legally void. One of the main restrictions on testamentary freedom, arising from the law of succession, is the entitlement of the closest family members of the deceased to a statutory share.

Testamentary freedom is thus a person's freedom to make such disposition on his property upon his death as do not contradict the general legal order and good morals of society and do comply with the restrictions established by the Law of Succession Act.

The principle of testamentary freedom is an expression of the principle of private autonomy, which is more broadly recognised in private law, being in turn closely related to the protection of private property10. Testamentary freedom developed rapidly in ancient Roman law. At the same time, testamentary freedom was not particularly widespread in the Middle Ages, when the economy was based on the family as an economic entity and land ownership or the right to use land, which passed from generation to generation, was especially important. It was practically impossible to bequeath land by means of a will. The Church, however, was not pleased with this situation and exerted its influence to gradually reintroduce the will, which at first was still available for only very limited property. It may be said that, in the Middle Ages, the will was favoured mainly by the Church, which wanted to gain property inter alia by enabling pious people to bequeath their property to the Church. Such rather limited testamentary freedom prevailed for centuries in England11 and elsewhere in Europe12, including the Estonian territory. It was possible at that time only to bequeath one's personal movables earned by one's own work and not inherited from the family (see, e.g., §§ 1993-2004 of the Baltic Private Law (BPL))13.

Thus, according to the Livonian town and country law, a testator could not make disposition on death for a manor or land inherited from his family, and, according to Estonian law, for any property acquired via succession or the fruits of such property. All this had to pass to the heirs (BPL § 1995). Such property could be disposed by a will only if the testator was the last of the lineage or if all blood relatives entitled to intestate succession granted their consent (BPL § 1997).

According to Livonian and Estonian law, parents with minor children who were not yet able to earn a living had to leave their children a share of their property subject to free testation such as was necessary for their maintenance and raising, as determined by their status, until they were able to earn a living themselves (BPL § 2001). The same restrictions as were established in the Livonian country law also applied in the town of Narva (BPL § 2004).

One of the best known persons who voiced an opinion against the will as the means of disposal of one's property beyond one's death was the French philosopher and lawyer Montesquieu, who said that ownership died with the man14. In this view, testamentary freedom is not some fundamental right. Throughout its historical development, testamentary freedom has always been restricted; all legal orders since Roman law, as stated above, have placed the rights of the closest family members of the deceased above it15. For a certain time, under Roman judicial practice, a court would nullify a will in which the testator left his children or grandchildren without any estate without stating adequate reason. Such a will was declared to have been drawn up in a state of mental incapacity16.

As the liberal view of the world began to spread, the understanding that only the person himself has the right to decide who will inherit his property gained more and more ground. Only if the person abuses his freedom may the state interfere and protect the family members of the deceased by way of entitling them to a statutory share17.

According to modern German legal literature, the purpose of the right to a statutory share is to balance the principle of testamentary freedom and the principle of the family's hereditary succession. This effectively reveals the link between the principle of the family's hereditary succession and the Constitution -- it is an elaboration of the guarantee to the right of succession (the subjective right of succession, in this meaning), and the principle of family protection. Based on society's sense of justice, it is not permissible in continental European legal culture to leave those closest to one without any estate18.

Simultaneously with the debate over the conformity of the right to a statutory share with the Constitution in Estonia, a similar debate continued for years in the Federal Republic of Germany. In its decision of 19 April 2005, the German court of constitutional review (Bundesverfassungsgericht) finally took the view that the entitlement of the children of the deceased...

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