Erbunwürdigkeit: Die Entwicklung eines Rechtsinstituts im Spiegel europäischer Kodifikationen (Unworthiness to Inherit: The Development of a Legal Rule in the Mirror of European Codifications)
Max Planck Institute for Comparative and International Private Law
May 1, 2010
Festschrift für Helmut Koziol zum 70. Geburtstag, pp. 463-511, Peter Apathy, ed., Jan Sramek Verlag, 2010
Max Planck Private Law Research Paper No. 10/5
The article analyses the development of the concept of indignitas succedendi in 10 codifications of Western Europe. Apart from the fact that all legal systems regard a person who has intentionally killed the deceased as unworthy to inherit, we have a very patchy picture.
Some light can be shed on the present state of affairs by a historical analysis. Such an analysis reveals that the draftsmen of the first two codifications still valid today (the French and Austrian ones), while both drawing on one and the same tradition, followed different concepts and thus selected different elements from that tradition. The Roman institution of indignitas succedendi, in other words, had been placed on two different conceptual tracks; and as a result of codification, and the concomitant abrogation of the ius commune, the intellectual framework for an international discourse was now lacking. A fresh start was made by the draftsmen of the German BGB. In an admirably comprehensive manner (which one can only commend to law reformers today) they considered all relevant regulations available internationally and ultimately decided to adopt a concept that differed from both the French and Austrian ones. For unworthiness to inherit the BGB is neither regarded as punishment nor based on the (presumed) intention of the deceased but rather serves to protect the freedom of the testator to determine who is to be his heir: his private autonomy mortis causa.
In the course of the twentieth century, five of the ten legal systems surveyed have reformed their rules on unworthiness to inherit. These reforms have led to a convergence, though only to a very limited extent. Nonetheless, frequency distribution as well as an analysis of lines of development reveals key elements of the law concerning unworthiness to inherit in Europe. On that basis it is possible to establish rational points of departure for discussing the details of this institution, to agree upon the most convincing conceptual and teleological foundations, and to pave the way towards leveling out differences which can be explained, but hardly justified, historically.
Please note that this is an article published in German.
Keywords: Avoidance of Wills, Codification, Freedom of Testation, Indignitas Succedendi, Ius Commune, Law of Succession, Legitimate Portion, Unworthiness to Inherit, Willsto Inherit, Wills
Date posted: September 17, 2010 ; Last revised: August 22, 2012