Testators in many jurisdictions worldwide are granted complete ‘freedom of testation’ and may, without any legislative restriction, decide how and to whom their estate is to be distributed on their death. However, this testamentary freedom is far from universal and many jurisdictions have incorporated ‘forced heirship’ provisions into their succession laws.
What Is ‘Forced Heirship’?
Forced heirship provisions restrict the individual’s freedom to choose how their property is divided on their death and confer an automatic entitlement on certain individuals to a portion of the deceased’s estate. These individuals are known as ‘protected heirs’ and typically include the surviving spouse, children and / or other relations of the deceased.
These restrictive rules apply irrespective of the terms of the deceased’s will and the stated wishes of the deceased may be disrupted by disgruntled protected heirs.
Forced heirship provisions typically apply only to a portion of the deceased’s estate. The balance of the estate may be distributed at the discretion of the testator.
Rationale for Forced Heirship Rules
Proponents of forced heirship maintain that an individual ought to make proper provision for his or her family or dependants. On the other hand, those opposed to the application of forced heirship rules claim that the State ought not impose restrictions on the distribution of an individual’s assets / property in death that it could not validly impose in life.
Which Jurisdictions Restrict Testamentary Freedom?
Forced heirship is a feature of the succession legislation of most civil law and Islamic jurisdictions. Restrictions on the freedom of testation also apply in some common law jurisdictions. By way of example, section 111 of the Irish Succession Act 1965 (as amended) automatically entitles the spouse of a deceased testator to claim at least a one-third share of the deceased’s estate.
The precise forced heirship provisions applicable vary from jurisdiction to jurisdiction, with some countries applying more severe rules than others.
Mitigation Of Forced Heirship Rules
Some individuals seek to circumvent applicable forced heirship provisions.
It may be possible to achieve this by way of inter vivos disposition of assets. However, the individual should be mindful that many jurisdictions have legislated to avoid lifetime dispositions, which were made with the intention of defeating a claim by a protected heir under applicable forced heirship rules. Where such dispositions were made within a certain period of the death of the testator, they may be ‘clawed back’ into the estate and taken into account in its distribution.
Other individuals may seek to vest assets during their lifetime in a foreign trust, established in a jurisdiction, which does not recognise the forced heirship laws of the individual’s country of domicile. This should not be attempted without the advice of a specialist.
Always Seek Legal Advice When Writing A Will
Testators should always be mindful of applicable legislation, which may restrict their ability to freely decide how their property is to be distributed on their death. Failure to do so may prove costly where a disgruntled protected heir makes a successful claim and legal costs are awarded against the estate. Legal advice should always be sought, both in the testator’s country of domicile and in any other jurisdiction in which he or she holds assets.