A Comparative Study of Forced Heirship- Focus on Family Provision under the Law of Succession in England and Wales

• Main Authors: Fu-kuei Liu, 劉富貴
• Other Authors: Hsiu-hsiung Lin
• Format: Others
• Language: zh-TW
• Online Access: http://ndltd.ncl.edu.tw/handle/74467607501287836102

碩士 === 東吳大學 === 法律學系 === 97 === While testamentary freedom must be respected, the right should not be absolute. The civil law systems for instance, use forced heirship institution as limitation on testamentary freedom. The reasonableness of such an institution and whether it meets our expectations however, remain questionable. Given this background, this thesis sets out to explore the family provision regime under the succession law in England and Wales – The Inheritance (Provision for Family and Dependants) Act 1975. Such family provision is a similar regime to forced heirship, only better embodying the spirit of forced heirship in its modern sense. Unlike in the classical institution of forced heirship where the only connection is family membership, the family provision is subject to the condition that the disposition of the deceased’s estate is not such as to make reasonable financial provision for the applicant. The two standards by which reasonable financial provision is measured are the surviving spouse standard and the maintenance standard. The former helps rectify the limitation of the principle of separate property, while the latter providing an extension of maintenance for the family beyond the death of the diceased, and therefore serving as a proper limitation to testamentary freedom. Same as the family provision legislation mentioned above, which is based on the concept of extended maintenance beyond death, our country also allows dependants to apply for allocation of the deceased’s estate. In addition, there are forced portion and reserved portion under the succession law in Socialist countries. Still, the broader trend suggests the principle of forced heirship may be changing. In the U.S. State of Louisiana, for example, the forced heirship institution has been replaced with a type of claim for maintenance protection. As a legacy of the civil law systems, the forced heirship institution in our country focuses on ensuring formal equality in heir protection and putting constraints on the deceased’s disposition that only takes effect on death, and is lacking anti-avoidance regulations, which is in effect going against the general trend of the modern society. Therefore, to balance between respecting the wishes of the deceased and ensuring the benefit of maintenance for the needy family, forced heirship should be transformed into a form of maintenance credit in the spirit of extended maintenance beyond death.