INTERNATIONAL SUCCESSION REVIEW – Inheritance systems in the light of testamentary freedom

Vol. 1, No. 2                                                                                                                                                                                                            November 2019

Dear Reader,

In the previous issue of the International Succession Review we described a somewhat unusual legal case in order to illustrate the colourful and complex issues that are often involved in international inheritance cases.

In this second issue we will embark on an exploration of the various major inheritance systems. These systems are quite different in terms of their beginnings and evolution but they share one thing in common: they are all attempts by mortals to create immortal rules to protect and carry on the traditions and ethical values of their respective societies across generations.

Continental, Anglo-Saxon and Islamic inheritance systems were founded on different principles and have evolved in different directions. However, their development is no longer isolated or mutually independent. In a 21st-century society – be it “western” or “eastern” – it is not uncommon for people with entirely different roots to find themselves “forced” to cooperate. They think differently about what’s fair and unfair, about what’s right and what’s wrong. They think differently about who should inherit what, and how much, and about the extent to which a person should be allowed to dictate what happens to their assets in the event of their death.

Technology is evolving rapidly, opportunities for individual mobility are widening, and the world is becoming an ever smaller place. As a simple practical consequence of this, it has become commonplace for people of different origins to share economic interests or to form a family. And perhaps these are situations in life where questions of international inheritance law, which often seem abstract, can take on pressing and practical importance. Business or family situations can arise where it is essential to truly understand the other party’s motivations and the roots of their thinking. But this requires us to understand what they think to be fair or unfair, right or wrong – and why.

We believe that the difference between the inheritance systems is perhaps best understood in terms of the freedom of testamentary disposition, and therefore we address this issue in our article. Naturally, the size of this topic makes it impossible to explore it fully in this one publication. Our aim is only to provide a brief overview and we hope thatin this overview our readers will find points of interest to savour – such as how similarly Alexis de Tocqueville and the Prophet Muhammad thought about inheritance law…

We hope you enjoy the read and find plenty of food for thought!

Dr. Péter Kun
managing partner of KUN & PARTNER Legal Partnership, member of the Budapest Bar Association and the Paris Bar Association, registered as TEP with the London-based Society of Trust and Estate Practitioners (STEP), vice- president of STEP Hungary, member of the International Estate Planning Commission of the Union Internationale des Avocats and of the International Relations Committee of the Budapest Bar Association,
direct contact:
Dr. Olivér Spiriev
consultant of KUN&PARTNER Legal Partnership,
direct contact:




or, to what extent and in what matters are we free to decide under continental,
Anglo-Saxon and Islamic inheritance laws?

dr. Olivér Spiriev and dr. Péter Kun

Introductory thoughts

“I’ve lived – and others too have died of that. (Attila József)

It’s safe to say that inheritance law is historically as old as the law itself; the rules of inheritance inevitably accompany the history of the law, and indeed, of civilised man himself. 1 Inheritance law is essentially a response from humans to their own mortality. 2 It is rooted in the finality of human life and the need of individual people and human societies for continuity.

The very existence of inheritance law betrays a very human idea: although individual human lives are finite, they are not isolated, but are part of an intergenerational “web of relationships”, in which transition between certain elements must be ensured.

As a part of ensuring continuity, all human societies that recognise private property create a system for the transfer of goods and of property and other material rights left “ownerless” upon someone’s death.

The central issue under inheritance law is determining the mode of transfer. Two factors play a key role in this: on the one hand, the “permanent” core values of the given society and, on the other, the individual who wishes to determine what happens to his assets after his life is over, in other words, the will of the testator.

Each system of inheritance laws establishes its own “idealised” order of succession that it regards as “correct”. In their essence, there is no great difference between these inheritance regimes: human societies usually consider the deceased’s family members 3 to be the natural custodians of the desired continuity, and order the deceased’s estate to be divided among them. 4

The difference lies in the fact that while some inheritance systems are based on the “idealised” order of succession, and ensure that its main objective – protection of the family – is guaranteed “through force of law” by applying predetermined mandatory rules, even if this means going against the will of the testator, other systems consider the deceased’s personal autonomy and freedom of disposition to be fundamental – against which community values can only enjoy occasional, discretionary protection. 5

Thus, by regulating the order of succession, the legal systems intervene in and influence the intergenerational shifts in property ownership and wealth. But is this intervention justified? Is it fair that the legal system, in protecting the most important interests and values of a given society, restricts the freedom of the individual to decide on the fate of his or her assets acquired during his or her lifetime? On the other hand, would it be fair for the individual to completely disregard the fundamental values of the society in which he or she grew up and acquired these assets?

The extension or restriction of testamentary freedom is therefore, rightly, the most important and profound issue in inheritance law. The legislative response to this question gives us an insight into a given community’s intergenerational values, and on its view regarding the boundaries of private autonomy and its perception of the human relationships that deserve protection. Indeed, we could go as far as to say that understanding these rules helps us map the “genetic code” 7 of a given society.

Alexis de Tocqueville put it this way: “I am surprised that ancient and modern jurists have not attributed to this law a greater influence on human affairs. It is true that these laws belong to civil affairs; but they ought nevertheless to be placed at the head of all political institutions; for, whilst political laws are only the symbol of a nation’s condition, they exercise an incredible influence upon its social state. They have, moreover, a sure and uniform manner of operating upon society, affecting, as it were, generations yet unborn. Through their means man acquires a kind of preternatural power over the future lot of his fellow-creatures. When the legislator has regulated the law of inheritance, he may rest from his labour. The machine once put in motion will go on for ages, and advance, as if self- guided, towards a given point.” 7 (Translated by: Henry Reeve: Democracy in America, Volumes One and Two, Pennsylvania State University, 2002)

Testamentary freedom in continental 8 legal systems

“The testator has the right to punish the unworthy, but does not have the right to ruin the lives of those that he gave life to or those that he received life from in favour, for example, of a flattering friend or a seductive woman, if he does not have in his breast the natural sensibility one has towards one’s parents and children.” 9

A central element of the modern continental legal systems is the obligations of the deceased towards his or her family.

While these legal systems certainly regard the individual’s personal autonomy as a fundamental value and grant the testator the right to decide the fate of his or her assets after his or her death, in the form of a will, they also ensure, through the concept of forced heirship (also referred to as légitime), that the close family members of the deceased 10 will enjoy at least some of the benefits of the estate.

The essence of forced heirship is that the law separates a certain portion (“forced share”) of the estate of the testator, which may – albeit in degrees and forms that vary from country to country – be claimed by the deceased’s immediate family, even if that goes against the will of the testator. Beneficiaries can be denied a forced share only if they are disinherited, but disinheriting is permitted only in very serious circumstances.

At the centre of continental regulation, therefore, are the interests of the close family members rather than a full guarantee of the testator’s freedom of decision. This approach reflects the idea that it is primarily family relationships that ensure continuity between individual human lives. In Roman law, which underlies the continental legal systems, “family property” initially took precedence over “individual property”. 11 It followed logically from this that what happened in the course of inheritance was simply that the testator’s property devolved back to its original source, the family. 12

The strong family-centred approach is also well illustrated by the views of the German philosopher Hegel on the law of inheritance. According to Hegel, the basis of inheritance law is not the will of the testator, but the high “ethical quality” of the family and the closely related concept of property ownership. Individual property is inseparable from the family’s “common property”, which the individual members of the family merely hold during their lifetime. Therefore, if a member of the family dies, there is no real change in ownership, as another member of the family simply acquires possession of what is the family’s common property. 13

But its role in protecting the family is only one argument in favour of forced heirship or légitime. According to the highly state-centred French approach, for example, légitime limits private autonomy not only in the interest of the family but also of society as a whole. In doing so, French law seeks to ensure the application of far more abstract values such as the principle of the “common good” and of “equality”.

The basis for regulations on légitime can be found in Roman law. Roman law, at the outset, in the Twelve Tables Laws (450-451 BC), granted the father, as the head of the family, an unlimited right to dictate how his possessions would be distributed upon his death. 14 However, it became evident quite early on that in many cases this full freedom of testation led to the dispossession of the deceased’s next of kin, and was thus not reconcilable with the obligation of the father to care for his family. 15 As a result of a long process of development, Roman law came to recognise the relatives of the testator as “indispensable”, and developed the institution of forced share (debita portio), which was at first enforced on a customary law basis and then in codified form in the law of Justinian.

In modern continental inheritance systems, there is a wide variation in the size of the reserved or protected share, i.e. of the forced share, as well as in who the protected relatives of the deceased are. A comprehensive description of these systems is beyond the scope of this article, but generally speaking, the most significant difference between them lies in the legal nature of the claim of the protected persons.

Some modern continental legal systems such as the French, Italian and Spanish jurisdictions, consider close relatives of the deceased who have an ownership claim to their share of the inheritance to be “forced heirs”. Others, such as the German, Austrian or Hungarian systems, do not consider the beneficiaries of a forced share to be heirs, but at the same time ensure them of a, primarily monetary, claim against the heirs named in the will, in an amount equal to the value of the forced share. 16

Under the “French model”, the starting point for inheritance succession is the share that is reserved for the close relatives of the testator (la réserve). The legal fate of the reserved shares after the deceased’s death is determined by the law, and thus the testator’s freedom of testamentary disposition is limited to the remaining, distributable portion (la disponsible). The beneficiaries of the forced heirship must be considered heirs regardless of the will, and even if they are excluded from the inheritance in the will, they will have an ownership claim over the portion of the estate that is reserved for them. 17

Under the “German model” on the other hand, the close relatives of the deceased are not classed as “forced heirs” and therefore the testator has free and unrestricted testamentary disposition over the totality of his or her assets. However, close relatives that are left out of the will but are entitled to a forced share can file a pecuniary claim, during a specific period, equal to their respective forced share, against the heirs that were named in the will by the testator.

All legal systems extend the protection of the beneficiaries of forced heirship to the time when the testator was still alive. Therefore the basis of the forced share comprises not only the assets of the testator at his death but also the items gifted by the testator – during his own lifetime in some legal systems and during a certain number of years before the testator’s death in others – to persons other than those who are entitled to forced heirship. Consequently, the basis of the forced share is a “virtual” estate that would have constituted the testator’s property at his death if he had not given any gifts to third persons during his life or during a given period before his death.

Testamentary freedom in Anglo-Saxon18 legal systems

“Freedom is not, as we are told, a liberty for every man to do what he lists…but a liberty to dispose, and order as he lists, his person, actions, possessions, and his whole property, within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own.” 19 (John Locke)

Anglo-Saxon inheritance systems are not familiar with the concept of forced heirship, at least not in the continental sense. A central element of Anglo-Saxon legal thinking is the free choice of the testator based on his or her private autonomy, as an essential component of the Anglo-American “legal tradition”. 20

This concept is based on the absolute freedom of individual ownership: the freedom of the testator, as the owner, to dispose over his assets includes the right to determine the fate of his assets even after his death – this freedom is a “part of the bundle of sticks in the right of property”. 21 John Stuart Mill says that “the ownership of a thing cannot be looked upon as complete without the power of bestowing it,
at death or during life, at the owner’s pleasure.”22

In addition to the freedom of ownership, there may be other – primarily utilitarian – arguments for granting wide-ranging testamentary freedom to the testator. In the life of the testator, he may receive more support and help from his acquaintances, family and friends due to the fact that his discretion will determine who receives her property. 23 In addition, in the absence of a predetermined circle of protected heirs, the next generation will be motivated to work, save and create an independent life for themselves rather than plan their future, as members of a protected circle of heirs, based around the assets they will inherit upon the testator’s death. 24

At the same time, the Anglo-Saxon family of legal systems also contains statutory rules on inheritance that are applicable in the absence of a will. These are similar to continental regulations and typically designate the close relatives of the deceased as heirs. 25 The role of the family in society and its significance in ensuring continuity between the generations are similar in the Anglo-Saxon and the continental legal systems – the difference lies “merely” in the extent of the freedom of disposition afforded the testator.

In addition to the rules of lawful inheritance, the Anglo-Saxon legal system also aims to protect family ties against the will of the testator. However, in Anglo-Saxon inheritance systems, in contrast to the continental approach, the “moral obligation” associated with family relations can only be enforce through indirect or discretionary means. The “English model” and the “American model” are very different in terms of the techniques used and the opportunities they afford for intervention.

The “English model” attempts to resolve any tension between the principle of testamentary freedom and the need to protect family ties through the “family maintenance system”. 26 In earlier centuries testamentary freedom, now so characteristic of English law, was applied only in exceptional cases – with respect to movable property – and became a fundamental principle only in the 16-17 th centuries. The limitations that had been placed on testamentary freedom were removed in the centuries thereafter, and subsequently, between the end of the 19 th and the beginning of the 20 th century, England introduced full and unlimited testamentary freedom. 27 However, by the beginning of the 20 th century, the increasingly widespread recognition of the social importance of the family – following serious debate in the British Parliament and in the legal literature 28 – paved the way for the reform of inheritance regulations. As a result, in 1938 the Inheritance (Family Provision) Act was adopted, allowing for the judicial review of the testament, replaced by the Inheritance (Provision for Family Maintenance and Dependants) Act in 1975.

The essence of the regulations is that if the testator’s dependent family member who is entitled to maintenance or other dependant 29 remains without sufficient support as a result of the will of the deceased, the court, upon the dependant’s request, may order the payment of an amount from the estate that corresponds to the duty of the deceased to take care of the dependant. Accordingly, family ties do not in themselves give rise to entitlement to a part of the deceased’s estate and must be supplemented by other factors such as the person’s need and lack of adequate support.

Thus while in continental systems the law determines the share of the assets that family members will inherit, the “English model” leaves it to the discretion of the courts to decide which persons need support, and to determine the amount of their financial claim. The courts exercise their discretion on the basis of several, primarily economic, factors. First, they examine the need of the claimants by considering their financial position and earning capacity. The court also takes into account the extent to which the testator had an obligation to support this person during his (the testator’s) lifetime, while the value of the estate itself is also an important criterion. Personal considerations may also play a role in the deliberations, such as how the applicant behaved towards the testator, and what reasons the testator may have had for excluding the person in need from his or her will. 30

Thus, inheritance under the English model is based on testamentary freedom, with the testator having the prerogative when it comes to determining the mode of continuity. However, in cases where the testator does not exercise this prerogative appropriately – thus creating an unjust situation – English law permits the courts to subsequently “adjust” the testator’s will. 31

The “American model” does not recognise the institution of forced heirship 32 or the “balance test” of the courts described briefly above.

In the former English colonies, the – at that time full – testamentary freedom enshrined in English law was adopted, while the southern states were influenced mainly by Spanish and French law; in the latter, however, the institutions of the continental legal system were mostly abolished in the course of the 19 th century. While in the 20 th century English law blunted the edges of unlimited testamentary freedom by means of “family maintenance laws”, US states have essentially maintained unrestricted testamentary freedom to this day. This full testamentary freedom for the testator reflects the inherently individualistic social and economic viewpoint of Americans, as well as their unconditional recognition of freedom of property. In the system of “economic liberalism” the owner’s testamentary freedom cannot be limited through governmental intervention, since this would represent an obstacle to market prosperity. 33

In other words, free disposal over one’s own property is a basic tenet of American thinking. As is common in all societies, American citizens often do not have a clear understanding of the intricacies of their legal system, but a knowledge that they are ultimately free to decide who will inherit their property and who will not is deeply rooted in the American psyche. 34 This is so true that the United States Supreme Court has ruled as a constitutional matter that freedom of disposition for the event of death is an inseparable part of ownership rights. 35 The courts have also made clear in numerous judgments that children have no natural legal claim to an estate, and that their share of such may be based solely on the will of the testator. 36

Although American inheritance law is traditionally centred on the testator’s unlimited freedom of testation, this does not mean that the legislation of individual states or even judicial practice entirely ignores the interests of the deceased’s family members.

Surviving spouses, for example, may lay a claim to a portion of the testator’s estate to ensure their own livelihood. The so-called dower law granting protection to the spouse has been replaced in most states by a so-called elective share that is similar to forced heirship in continental law, permitting the surviving spouse to claim a share of the inheritance equal to one third or one half of the estate instead of the share designated for him or her in the will. 37 It is important to note, however, that the concept of elective share has been implemented by those states – in fact, most states – that do not recognise the notion of joint marital property, 38 in an attempt to prevent the surviving spouse from becoming a “burden on society”. 39

We also need to mention the pretermission heir rules. These rules provide a degree of protection for children who are left out of a will, or ensure that the testator at least takes them into consideration when drawing up his or her will. Accordingly, in certain American states children who were born after the date of the will, or who were left out of the will, may lay claim to their lawful share of the inheritance.40 And the exclusion of the latter from inheritance is only valid if this is clearly stated in the will. 41

Nevertheless, perhaps the most interesting limit to testamentary freedom, and the one that receives the most attention from jurists, is one that arose through judicial practice. In many cases, when the testator disregards his moral obligations to his family in his will, US courts invalidate what are referred to as “unnatural dispositions” primarily by appealing to the doctrines of “mental capacity” and “undue influence”. 42 Having reviewed the judicial practices of several years, Melanie Leslie declares that the American testamentary freedom is a myth, because American courts regularly “manipulate” the above- mentioned doctrines and revise the will of the testator in order to provide for the protection of family members. 43 Ray Madoff takes a similar position when he says that the doctrine of “unfair influence” is clearly applied by the courts to protect the family. 44 Others argue that in fact the courts themselves rarely accept claims based on “undue influence”, but that it is rather juries that are open to such claims, as for them, the “fairness” of the order of succession is often more important than abstract principles. 45

Testamentary right in Islamic law 46

“Whoever tries to avoid giving the inheritance to his heirs, Allah will deprive him of his inheritance in Paradise on the Day of Resurrection.” Sunan Ibn E Majah 4: chapter 24, hadith 2703 47

Islamic law, that is, Sharia, differs greatly in its sources 48 , and in its regulatory scope and content from the Continental and Anglo-Saxon concepts. According to Islam, Sharia is not a law created by people, but a set of rules and precepts determined by God, and as such, it is not based on legislation, but on the recognition and correct interpretation of divine rules.that have always existed. 49

Sharia, meaning “the road that leads to Allah50 , regulates human life in a much broader sense than modern secular legal systems do. Its rules apply not only to life situations of legal relevance from a traditional civil or common law perspective, but also to such matters as prayer, food, hygiene, dress and personal lifestyle. In Simon Róbert’s definition, Sharia is “the Muslim religious law that pervades every sphere of existence.51 This is why the expression “Islamic law” is inaccurate and is used simply because we do not have a more appropriate term. 52 Arriving at a definition is further complicated by its internal divisions, such as the Sunni and Shiite branches of Islam, and, because of the existence of various legal schools, especially within the Sunni branch (Hanafi, Shafi, Maliki, Hanbali), there is no such thing as a unified Islamic law that is consistently applied throughout the Muslim world.

Nevertheless, inheritance law has traditionally been an extremely important focus of Islamic legal thinking: the Prophet Muhammad himself attached great importance to the rules of inheritance law and called upon his followers to study and teach it 53 , and according to a famous hadith, he said that “the rules of inheritance constitute half of the sum of all useful human knowledge”. 54

Although, as a religious law, it differs in its basic tenets from the legal systems described above, in terms of its objectives, Islamic inheritance law is similar to the continental legal system. According to the Islamic approach, the well-being of the community can best be ensured if goods devolve in a predictable way to the persons most worthy of them, such as the family members of the testator, rather than to those personally favoured by the testator. 55 Islamic inheritance law ensures that the structure of the Muslim family remains more or less intact for generations. 56

Accordingly, religious Islamic law of inheritance is effectively a very strong forced heir system, in which the testamentary freedom of the testator is considerably restricted. Under Islamic law, a Muslim can only dispose validly over 1/3rd of his estate in his will; the rest of the deceased’s property i distributed among the deceased’s family members in the proportions specified in the “lawful” order of succession. 57 However, it is important to note that, unlike in continental legal systems, the protection of family members does not extend to the lifetime of the testator, as gifts made during his lifetime are not included in his estate. 58

Thus, Islamic law is clearly centred on a community-idealised, but at the same time religiously-based, system of inheritance succession. There are essentially three verses of the Quran (4:11, 4:12 and 4:176) that define the protected family members, and the inheritance shares due to such persons, and these may not be changed by the testator. To these “Quranic heirs” both the Sunni and Shiite branches add so-called “other heirs”, although in different ways, making the Islamic system of inheritance extremely complex and rather difficult to understand. 59 Protected persons cannot be deprived of their inheritance; however, they are not entitled to it if they are not Muslim by religion 60 or if they intentionally killed the testator. 61

The legal institution of the last will and testament (wassiyah) is also of “divine origin”; its source can be found in a verse of the Quran (2:180). Islam recommends preparing a will 62 ; however, its purpose in the Islamic view is primarily to allow the testator to help persons who – either due to their religion or to the fact that they are not related to the family – have no entitlement to inherit under the legal
order of succession. 63

There is no verse in the Quran that refers the precise extent of restriction on testamentary freedom; the basis for this is determined, among others, by the following famous hadith:

“The Messenger of Allah came to visit me in the year of Farewell Pilgrimage when I was afflicted with a severe illness. I said to him: ‘Oh messenger of Allah! You see how ill I am, I have property and no heir except my daughter. Shall I then bequeath two thirds of my property as alms?’ He replied: ‘No’. I said: ‘A half then?’ He still said no. I then asked: ‘A third? He replied: ‘Yes, a third, and athird is much. It is better that you leave your heirs rich than you leave them destitute from their neighbours’.” (Amer Ibn Sa’d Ibn) 64

If in his will the testator disposes over more than 1/3 of his estate, Islamic law will not consider the will invalid, but will correct the “mistake” in various ways. 65 Accordingly, the lawful heirs may consent – even before the death of the testator under Shiite law, but exclusively after his death under Sunni law – to divide the part of the testator’s estate in excess of 1/3 in accordance with the will. If the lawful heirs do not grant their consent, Sunni law reduces the inheritance of the heirs specified in the will to ensure that it does not exceed 1/3 of the inheritance overall (“rule of rateable abatement”), while Shiite law implements this reduction pursuant to the order in which the heirs are named in the will (“rule of chronological priority”). 66

The 19th and 20th centuries were a period of modernisation in the Middle East, which saw traditional Islamic law replaced by codified law in many Muslim states. These modernisation efforts focused primarily on public law and criminal law, and on the property law aspects of civil law, while Sharia family and inheritance rules remained largely unchanged, or, following only moderate reform, were transposed from the realm of “religious law” to “secular law”, i.e. into the relevant national legislation. 67 For these reasons, Sharia plays a differing role in the various inheritance systems of the Muslim world. While in certain countries (e.g. Saudi Arabia and Bahrein) the traditional teachings of a given school of Sharia still apply without change in the area of inheritance law, most countries with a Muslim majority have codified Sharia inheritance rules in legal codes (e.g. Iran, Egypt, Syria, Tunisia), or codified them partially and left the traditional rules of Sharia to fill any remaining gaps in  the law (e.g. Pakistan, Lebanon, Libya). 68

1.András Földi, Gábor Hamza: A Római Jog története és institúciói [The History and Institutes of Roman Law], Nemzeti Tankönyvkiadó, Budapest, 2007, p. 593

2.  Shelly Kreiczer-Levy: Inheritance Legal Systems and the Intergenerational Bond, in: Real Property, Trust and Estate Law Journal, Vol. 46. No. 3. (Winter 2012), p. 501.

3. However, in terms of the concept of family, the circle of family members concerned, and the order of precedence between them, there may be significant differences between the individual legal systems, reflecting the varied perception of family among different societies.

4. According to some, the lawful system of inheritance succession is determined exclusively by the presumed will of the testator. This view presupposes that a rational heir would leave his property to his immediate family. For more on this, see: Jens Beckert: Inherited Wealth, Princeton University Press, Princeton, 2008, pp. 52-53.

5. Meryl Thomas, Briand Dowrick: The Future of Légitime – Vive La Différence!, Jersey & Guersney Law Review (October 2013), p. 1,

6. John G. Fleming: Changing Functions of Succession Laws, in: The American Journal of Comparative Law Vol. 26, No 2. (Spring 1978), p. 233.

7. Alexis de Tocqueville: De la démocratie en Amérique: « Je m’étonne que les publicistes anciens et modernes n’aient pas attribué aux lois sur les successions. Ces lois appartiennent, il est vrai, à l’ordre civil ; mais elles devraient être placées en tête de toutes les institutions politiques, car elles influent incroyablement sur l’état social des peuples, dont les lois politiques ne sont que l’expression. Elles ont de plus une manière sûre et uniforme d’opérer sur la société ; elles saisissent en quelque sorte les générations avant leur naissance. Par elles, l’homme est armé d’un pouvoir presque divin sur l’avenir de ses semblables. Le législateur règle une fois  la succession des citoyens, et il se repose pendant des siècles : le mouvement donné à son œuvre, il peut en retirer la main ; la machine agit par ses propres forces, et se dirige comme d’elle-même vers un but indiqué d’avance. » Source: modernes-n-aient-pas-attribue-aux-lois-sur-les-successions_a111.html

8. The vast majority of European and Latin-American legal systems as well as those of Iceland, Louisiana and Québec, belong to the continental (also known as the Romano-Germanic) family of legal systems. Within the Romano-Germanic family of legal systems, jurists usually differentiate between three subsystems or jurisdictions: the Romanist (Western and Southern Europe, Latin America), Germanic (Central and Eastern Europe) and Northern legal system.

9. Lőrincz Tóth: Örökösödés az ausztriai általános polgári törvénykönyv szerint, nevezetesen végrendeletekről, törvényes örökösödésről, és a hagyatékok tárgyalásáról, örökösödés-rendi táblával s irománypéldákkal világosítva. [Inheritance under the Austrian General Civil Code, specifically with respect to wills, lawful inheritance, and the negotiation of bequests, illustrated with an inheritance succession chart and with literary examples]. Pest: Heckenast 1854, quoted by András Máz in: A kötelesrész megjelenése a magyar magánjog
rendszerében – Tekintettel a nagy európai jogrendszerek megoldásaira [The appearance of légitme in Hungarian private law – in light of its treatment under the major European legal systems], doctoral dissertation, Pécsi Tudományegyetem ÁJK, 2009, p. 7. (own translation)

10. In most continental jurisdictions, the family members that enjoy protection in this respect are first and foremost the descendants of the deceased and, secondly, his or her forebears and surviving spouse.

11. George A. Pelletier Jr., Michael R. Sonnenreich: A Comparative Analysis of Civil Law Succession, 11 Vill. L. Rev. (1966), p. 323.

12.  Shelly Kreiczer-Levy: Inheritance Legal Systems and the Intergenerational Bond, p. 501.

13. Jens Beckert: Inherited Wealth, p. 53.

14. Gábor Juhász: Az örökhagyó szabad rendelkezési jogának korlátjaként megjelenő kötelesrész a spanyol jogban [Emergence of forced heirship as a limit on testators’ right of testamentary freedom in Spanish law], in: Közjegyzők Közlönye, no. 2014/6. P. 6. kozlonye_2014-6.pdf

15.  George A. Pelletier Jr., Michael R. Sonnenreich: A Comparative Analysis of Civil Law Succession, p. 349.

16. András Földi, Gábor Hamza: A Római Jog története és institúciói [The History and Institutes of Roman Law], p. 647.

17.  However, it is worth noting that, since 2006, French law has made it possible for a person named as an heir in a will to satisfy the claim of a “forced heir” either by releasing to the latter a part of her share of the inheritance or paying him an equivalent financial consideration.

18.  The Anglo-Saxon (also known as the Anglo-American) family of legal systems includes the legal systems of most of Great Britain (England, Wales, Northern Ireland), North America (with the exception of Louisiana and Quebec), and those of Ireland, Australia, New Zealand, Bangladesh, India, Pakistan, South-Africa, Hong Kong and in part Nigeria, among others.

19. P Laslett (ed.): John Locke – Two Treatises of Government (2nd edition), 1967, ch. VI [57], quotes: Rosalind F Croucher: How free is free? Testamentary Freedom and the Battle between ‘Family’ and ‘Property’ in: 37 Australian Journal of Legal Philosophy 9, 2012, p. 12.

20. Shelly Kreiczer-Levy: Inheritance Legal Systems and the Intergenerational Bond, p. 501.

21. Shelly Kreiczer-Levy: Inheritance Legal Systems and the Intergenerational Bond, p. 500.

22. JS Mill, Principles of Political Economy (1848), Bk II, ch. 2 [4], quotes: Rosalind F Croucher: How free is free? Testamentary Freedom and the Battle between ‘Family’ and ‘Property’

23. Joshua C. Tate, Caregiving and the Case for Testamentary Freedom, in: UC Davis Law Review Vol. 42, p. 129.

24. Shelly Kreiczer-Levy: Inheritance Legal Systems and the Intergenerational Bond, p. 500.

25. Although testamentary freedom is the guiding principle of the Anglo-Saxon inheritance system, family- centred regulation of lawful inheritance plays just as important a role in practice. According to figures for 2009, more than half of the American population has not made a will, while in the UK, according to some surveys, it is as high as 60%. Source: Ray D. Madoff: A Tale of Two Countries: Comparing the Law of Inheritance in Two Seemingly Opposite System, Boston College International and Comparative Law Review, Vol 37, Issue 2, Article 2, p. 344 and

26. Australia and Canada (with the exception of Quebec), among others, follow the “English model”, as does New Zealand, whose legal system is considered the pioneer of the family protection system and thus itself a model of English regulation.

27. Elizabeth Travis High: The Tension between Testamentary Freedom and Parental Support Obligations: A Comparison between the United States and Great Britain, in: Cornell International Law Journal, Volume 17, Issue 2, Article 3, Summer 1984, p. 322.

28. For more on this, see: Elizabeth Travis High: The Tension between Testamentary Freedom and Parental Support Obligations: A Comparison between the United States and Great Britain, in: Cornell International Law Journal, Volume 17, Issue 2 (Summer 1984), pp. 322-330.

29. Under the Inheritance Family Provision Act of 1938, the court allowed applications for incapacitated or underage children, unmarried daughters, and a surviving spouse, while the Inheritance (Provision for Family Maintenance and Dependants) Act of 1975 extended the scope of protected persons to include all children of the testator regardless of age, any previous spouse, as well as any dependant – even someone outside the family – who enjoyed the support of the testator during the latter’s life.

30. Shelly Kreiczer-Levy: Inheritance Legal Systems and the Intergenerational Bond, pp. 531-532. The author remarks that in most cases English courts accept the claims of the testator’s independent children who are fit for work only under special circumstances: “When a child is in employment, with an earning capacity for the foreseeable future, it is unlikely he will succeed in his application without some special circumstance such as a moral obligation”. On the other hand, in one specific case the court granted the 69-year- old daughter of the testator who was no longer fit for work an amount from the estate that was sufficient for her sustenance, contrary to the testator’s will.

31. Shelly Kreiczer-Levy: Inheritance Legal Systems and the Intergenerational Bond, p. 523.

32. An exception is the state of Louisiana with its French legal traditions, where the institution of forced heirship (légitime) known from continental law limits the testamentary freedom of the testator. However, Louisiana is strengthening testamentary freedom while at the same time weakening the institution of forced heirship. For more on this, see: Katherine Shaw Spaht, Kathryn Venturatos Lorio, Cynthia Picou, Cynthia Samuel, Frederick W. Swaim Jr: The New Forced Heirship Legislation: A Regrettable ‘Revolution’, in: Lousiana Law Review, Volume 50, Number 3 (January 1990) Of the other American states, only Texas, with its Spanish legal roots, attempted to introduce an obligatory institution, in 1846, but this was abolished by 1856. For more on this, see: Joseph Dianow: The Early Sources of Forced Heirship: Its History in Texas and Louisiana, in: Louisiana Law Review, Volume 4, Number 1 (November 1941)

33. András Mázi: A kötelesrész megjelenése a magyar magánjog rendszerében [The appearance of légitime in the
system of Hungarian private law], p. 62

34. Ray D. Madoff: A Tale of Two Countries: Comparing the Law of Inheritance in Two Seemingly Opposite Systems, p. 3

35. Hodel v. Irving, 481 U.S. 704, 716 (1987)

36. This is what a court in Ohio said: “Basically, the right to receive property by will is a creature of the law, and is not a natural right or one guaranteed or protected by either the Ohio or the United States constitution. It is a fundamental rule of law in Ohio that a testator may legally entirely disinherit his children.” Shapira v. Union Nat’l Bank, 315 N.E. 2d 825, 828 (Ohio Misc, 1974.)

37. Elizabeth Travis High: The Tension between Testamentary Freedom and Parental Support Obligations, p. 331.

38. John H. Langbein, Lawrence W. Waggoner: Redesigning the Spouse’s Forced Share. 22 Real Prop. Prob. & Tr. J. (1987), p. 305.


40. Shelly Kreiczer-Levy: Inheritance Legal Systems and the Intergenerational Bond, pp. 511-515.

41. In Arkansas, for example, a child may be validly excluded from inheritance if he or she is given a symbolic 1 dollar in the will. See: Shelly Kreiczer-Levy: Inheritance Legal Systems and the Intergenerational Bond, p. 513.

42. Elizabeth Travis High: The Tension between Testamentary Freedom and Parental Support Obligations, p.

43. Melanie B. Leslie, The Myth of Testamentary Freedom, 38 ARIZ. L. REV. 235, 236 (1996)

44.  Ray D. Madoff, Unmasking Undue Influence, 81 MINN. L. REV. (1997), p. 576.

45.See: Ronald Chester, Less Law, but More Justice?: Jury Trials and Mediation as Means of Resolving Will Contests, 37 DUQ. L. REV. 173 (1999).

46. For the purposes of this article, the term “Islamic law” means, on the one hand, legal systems whose family and inheritance rules are based on Islamic religious norms. This includes countries in the Arab League (e.g. Algeria, Egypt, Iraq, Lebanon, Morocco, Saudi Arabia and Tunisia) as well as Iran, Pakistan, Afghanistan, Indonesia and Malaysia. Turkey is not included here because its family and inheritance laws are based on Swiss law. On the other hand, we need to note that Islamic law is the legal system of a religious community and therefore it is often binding on Muslims regardless of whether it is officially recognised in a given country.

47. source:

48. A detailed description of the sources of Sharia goes far beyond the scope of this article, and so we will simply list them here in brief: 1. The Quran, as direct divine revelation 2. Sunnah, as the collection of the actions and teachings of the prophet Muhammad, which is based primarily on the hadiths, the traditions related to the life of Muhammad 3. Ijma, the consensus or agreement of Islamic scholars on a point of Islamic law 4. Qiyas, the method of analogy to develop laws, which is to be consulted when none of the other legal sources provide direct guidance in a specific case.

49. Although Sharia is based on divine revelation in Islam, it is nevertheless a “product of human intellect” because humans recognise and interpret divine laws, and as such it is both “divine law” and “legal law”. See: Tariq Ramadan (2004): Western Muslims and the Future of Islam, p. 34. Oxford University Press, Oxford

50. János Jány: Az iszlám jog [Islamic Law] in András Jakab – Balázs Fekete (ed.): Internetes Jogtudományi Enciklopédia (Jogösszehasonlítás rovat, editor: Balázs Fekete)

51. Róbert Simon: Mohamed és a Korán [Mohamed and the Quoran]. In: A Korán világa [The World of the Quoran], Helikon Kiadó, Budapest, 1987, p. 501.

52. János Jany: A világ főbb jogrendszerei [The world’s main legal systems], Pázmány Péter Katoliku Egyetemes Bölcsészettudományi Kar, Piliscsaba, 2011, p. 47.

53. Zafar Iqbal Kalanauri: Law of Inheritance in Islam, p. 1,

54. Nadjma Yassari: Intestate Succession in Islamic Countries, in: Kenneth G C Reid, Maruij J De Waal, Reinhard Zimmerman (ed.): Comparative Succession Law. Volume II: Intestate Succession Oxford: University Press 2015. XIX, 528 S., p. 423

55. Ian Edge: Middle East, in: Louis Garb, John Wood (ed.): International Succession (4th Edition), Oxford University Press, 2015, p. 569.

56. John G Fleming: Changing Functions of Succession Laws (1977) 26 AJCL p. 223.

57. Ian Edge: Middle East, p. 569

58. Ian Edge: Middle East, p. 571

59. Based on the rules of the Quran as well as the traditions of the Prophet, Muslim legal scholars drafted the laws of inheritance in such detail that they even played a major role in the development of Islamic mathematics, specifically algebra. See: Gandz, Solomon (1938). "The Algebra of Inheritance: A Rehabilitation of Al- Khuwarizmi". Osiris. University of Chicago Press. 5: 319–91

60. According to a hadith, the Prophet Muhammed said the following: “A Muslim cannot be the heir of a disbeliever, nor can a disbeliever be the heir of a Muslim.” (Sahih al-Bukhari Hadith collection) source:

61. Mohammed said: “One who kills a man cannot inherit from him.” (Ibn Majah Hadith collection) source: 

62. One hadith says: “If a Muslim has something to leave behind, he must not spend longer than two nights away from home without writing a will.” (Sahih al-Bukari hadith collection) source:

63. This is why Sunni law does not permit specifying a bequest in a will for a protected person included in the
legal order of succession. Shiite law does apply such a restriction.

64. source: Isa H. Chiroma: Conflict between Islamic Law and Common Law on the Testamentary Powers (Wasiyyah): The Attitude of Nigerian Courts, in: Islamic Studies Vol. 32. No. 3 (Autumn 1993), p. 340

65 According to certain Muslim legal scholars, however, in this case the entire will is invalid, but this is a minority opinion. See: Ian Edge: Middle East, p. 569

66. Dr. Anand Kumar Tripathi: The Concept of ‘Will’ Under Muslim Law: A Study, International Journal of Law and Legal Jurisprudence Studies: ISSN 2348-8212: Volume 4 Issue 3, pp. 78-81 content/uploads/2017/08/Will.pdf

67. János Jany: Az iszlám jog [Islamic Law] [35]

68. For more on this, see: Sebghatullah Qazi Zada, Mohd Ziaolhaq Qazi Zada: Codification of Islamic Law in the Muslim World: Trends and Practices, J. Appl. Environ. Biol. Sci. 6 (12), 2016, pp. 160-171, Anderson, J. N. D. “Codification in the Muslim World: Some Reflections.” The Rabel Journal of Comparative and International Private Law, vol. 30, no. 2, 1966, pp. 241–253