On Reform of Estonian Succession Law
| Author | Urve Liin |
| Pages | 105-109 |
Urve Liin
On Reform of Estonian Succession Law
One can find only three words about the right to inherit in the Constitution of the Republic of Estonia passed by referendum on 28 June 1992: "The right to inherit is guaranteed" (§ 32(4) of the Constitution)1 but how specifically the right to inherit is guaranteed and which are the underlying standpoints becomes clearer in the Law of Succession Act passed by the Riigikogu on 15 May 1996 (hereinafter LSA - RT I 1996, 38, 752), which entered into force on 1 January 1997. This article aims to highlight principle changes made in Estonian succession law compared with Soviet succession law that preceded it, and to determine, on the basis of the principles applied in our LSA, the position of Estonian succession law in continental Europe's legal system.
Within comparative law, continental Europe's legal system brings out four different groups or law families - that of the Roman, German, Scandinavian and socialist countries2. In giving a general characterisation of Estonian succession law it is, of course, possible to proceed from such a classification. Influences have certainly been disparate throughout history; at this point we should primarily mention Roman law, which is naturally the basis of continental Europe's succession law. At the same time, in the light of single institutes and principles of succession we can classify different countries into rather dissimilar groups3.
The task of this article, however, is not to give a detailed overview of the entire history of Estonia's succession law but rather to serve as a reminder of where we stopped in 1940 and where we had arrived by 1 January 1997.
Until 1940, i.e. until the Soviets came to power, relationships in private law were in Estonia regulated by the codification Liv-, Est- und Curlandisches Privatrecht which originated in main part in 1864, compiled by Professor Fr. G. Bunge. In Estonian legal literature it is known as the Baltic Private Act or BPA. The codification summarised the then legal norms which in large part were based on German law but also on Swedish law and local common law. BPA was with its 4600 articles one of the largest civil codes in the world4.
After Estonia had become independent, work was started on a new civil code in the mid-1920s. Professor Jüri Uluots from the University of Tartu chaired the commission set up for this purpose. The Bill was developed on the basis of the valid BPA and the Bill of Civil Code of the Russian Empire plus the new acts which had been adopted during the period of Estonian independence. The German BGB, Swiss ZGB and OR, Hungarian Bill of Civil Code, French Code civil, Polish Bill of Civil Code, Italian Bill of Obligation Law, etc. served as foreign examples. The initial version of the Bill of Civil Code or BCC was completed in 1935 and the final version was ready by the end of 1939. On December 11, the Bill was submitted to the Riigikogu. Between January and March 1940 a special civil code committee of the Riigikogu prepared their additions and amendments and presented the Bill to the Riigikogu for adoption which was to occur at the autumn session 1940 but never did due to the occupation of the Republic of Estonia5.
After Estonia's restoration of independence, in October 1992, one of the first actions of the Riigikogu was to adopt a resolution on the consistency of legal drafting, which declared that bills of laws had to be prepared on the basis of the legislation that had been in force in the Republic of Estonia before 1940. Thus, BCC which had been completed by 1940 was taken as the primary basis for conducting the reform of private law. Today, when five of the six parts of Estonia's Civil Code have been adopted (Law of Property Act, General Principles of the Civil Code Act, and Family Act which entered into force respectively on 1 December 1993, 1 September 1994, and 1 January 1995, and LSA), we can conclude that in reality the effect of BCC can mainly be felt in the law of property6 and succession law7 but virtually not at all in family law8 where the influence of the Marriage and Family Code of the ESSR, in force as from 1970, is still prevalent. Whilst, rushing ahead we can say that LSA is not entirely free of the standpoints of Soviet succession law9.
Thus, the reform of Estonia's succession law was built on BCC, as it was as of 1940, in which the related part was based, to an extent that could be felt, on the principles recognised by BPA, however, in certain parts BCC has rather similar provisions with BGB, in particular as regards the specification of intestate heirs but in other parts too. Consequently, the main task of the developers of the Bill of LSA was to review critically and, if necessary, rewrite the part of BCC concerning succession. Outdated provisions were cast aside and the Bill was harmonised with the parts of the civil code that were already in force10. The Bill was subjected to evaluation by German and Dutch experts. The comments and proposals made by the Dutch experts in their thorough and theoretically well-founded analysis were especially taken into account during the preparation of the final redaction of the Bill11, and this is can be felt primarily in the parts dealing with the forms and duration of wills.
Private succession is one of the main principles of a private property based right to inherit the guarantee of which, as can be seen in the Estonian Constitution, is considered especially important in those countries which are based on private property12 and it has been primarily in this respect that Western jurists have criticised Soviet succession law13. In applying the principle of private succession, a major breakthrough has occurred as a result of Estonia's reform of succession law compared with the past fifty years. The right of the state and local government to gain property within the purview of LSA has been reduced to a minimum14 compared with the Soviet law15. Primarily this means that, compared with the Civil Code of the ESSR where the definition of intestate heirs was very narrow - the children (in Estonia the right of representation remained effective until the great grandchildren of the bequeather), parents, grandparents, siblings and the surviving spouse of the bequeather. Besides these, the right to inherit of the bequeather's so-called dependent was recognised. If there were not any of the above named, the estate transferred to the state. This meant that one could leave property to the children of one's sister or brother or other more distant relatives only by will.
Under the current LSA, there are no legal restrictions on the descendants of a bequeather, hence the right of representation is formally indefinite, i.e. there are only natural boundaries. Similarly, the descendants of the bequeather's siblings as well as the aunts and uncles and their descendants can succeed under the right of representation. As far as intestate heirs are concerned, the possibility that a local government may receive an estate has become negligible. But if we consider the fact that LSA holds on to the system of acceptance which has historically developed in Estonia, it may happen that not all the so-called potential heirs, especially distant relatives, do not get to know that they may present themselves as heirs.
Over the years, the principle of private succession, or the issue of the Extent of Succession, has been considered very important. This was emphasised in the 1930s in discussions on the role of BCC succession clauses in creating an incentive to encourage a person to work for his own benefit and that of those close to him16, a point raised again during the discussions...
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