THE SUCCESSION/PROPERTY BORDERLAND: A VIEW FROM SCOTLAND George Gretton (U of Edinburgh) [Draft of 21 November 2013] Introduction This paper has ten – very unequal - parts. (I) The first part asks whether succession law is part of the core of legal education in various countries. This does not itself deal with the property/succession interface, but isinteresting by way of background. (II) The second part looks at where succession law is located in the map of the law in different legal systems, and also at where it should be located. (III) The third part looks – briefly – at matrimonial property law. (IV) The fourth part considers – again briefly - the types of property right that may result from death. (V) The fifth part is “Proprietary death planning: (i) trusts”, but this is brief, the subject of trusts being too large for discussion here. (VI) The sixth part is “Proprietary death planning: (ii) usufructs”. (VII) The seventh part is “Proprietary death planning: (iii) joint property, tontine, substitutions.” This part considers arrangements whereby property can be co-owned by X and Y in such a way that on X’s death Y becomes sole owner – regardless of what general succession law would say as to who should inherit X’s share. (VIII) The eighth part is “Proprietary death planning: (iv) substitutions, remainders and entails”. This considers arrangements whereby property can be made subject to successive ownership, so that X is owner, and when s/he dies, Y becomes owner - regardless of what general succession law would say as to who should inherit X’s property. (IX) The ninth part considers succession law as an aspect of transfer law – the manner in which rights are transferred. The law relating to the transfer of rights – at least of real rights – is always considered a central feature of property law. Death gives rise to transfer, from the dead to the living. To what extent is transfer law different in the mortis causa case from what it is in the inter vivos case? (X) Conclusions Although the title to this paper contains the words “a view from Scotland”, this paper has only a small amount of tartan. Its approach is comparative, and yet admittedly grossly inadequate as a comparative piece. Not much comparative work has been done in this area,1 and this paper merely offers some preliminary thoughts. And at the outset I should apologise, at a Ius Commune conference, for my as- yet inadequate knowledge of Belgian and Dutch law in this area. Part I: Succession law: part of the private law core? 1 When preparing this paper I looked at the shelves in Edinburgh University Library to see what monographs there were on comparative succession law. The answer? Not very much, when compared with (for example) comparative property law or comparative contract law. When this subject was first being discussed, Bram wrote something in an email which set me thinking. This was that succession law was a topic that he had never studied. That is of course not a reflection on Bram’s scholarship, but rather on how succession law is perceived in different countries. It is not part of the core curriculum in the Netherlands. What about other countries? I have not made any formal investigations, and indeed the study of comparative law curricula is as far as I know an unexplored subject, though one that would certainly be worth exploring. My impression is that – speaking generally - succession is not part of the core curriculum in most of the Common Law world, whilst in the Civil Law world the situation is mixed, it being core in some countries (including Germany, Austria and I think Italy) but not others, such as the Netherlands, and France. I have not yet verified the Belgian position. As for the so-called mixed systems, it seems that succession law is core. This is true in Scotland, Quebec and South Africa, for instance. The issue is significant. It seems to me that succession law should be in the core. Death is (apart from birth itself) the one universal of human life. People may or may not be involved in property transactions, or marry and have children, or go into business, or be involved in delicts or in crimes, whether as victim or wrongdoer. But all die. Moreover, succession law is important for property law, which is part of the core everywhere.2 Areas of law can be near to or far from each other, and to understand a given area it helps to know something of neighbouring areas. Property law has more than one neighbouring area. One is insolvency law, in all its various forms, including the law of forced execution, because the test of the nature of a patrimonial right is often to be found by examining what happens in insolvency. Succession law has certain parallels with insolvency law. In English one speaks of “winding up” in both cases. One also uses the term “estate” in both cases. In both there exists a mass of assets, plus a set of claims, and the claims will exhaust the estate. In both there are rules about priority. In many legal systems (specially the Common Law systems) there is an administrator in both. So there is a triangle of connection: (i) Property law and succession law; (ii) succession law and insolvency law; (iii) Insolvency law and property law. Another is succession law, which is mainly about the collision of property law with death. In very few parts of the world is insolvency law part of the core curriculum. In fact as far as I know Scotland is the only place. We all believe that home is best, so you won’t be surprised if I say that I think that property law is best studied in conjunction with at least some basic insolvency law. And of course I think the same for succession law. The term property law has wider and narrower senses. In the broad sense it means patrimonial law, and succession is relevant because almost all patrimonial rights have to be dealt with in the case of death. Those patrimonial rights include real rights. Part II Succession law: location on the map of the law? I have called succession law a “neighbouring area” to property law. It can in fact be categorized in more than one way. It can be regarded as a branch of the law of persons, and more specifically of family law. For a married person, death is one of the two ways in which a marriage can end, and the surviving spouse has (usually, anyway3) patrimonial rights in either case. Moreover, those related by blood have rights in intestacy, and, in many systems, in testacy too, and such claims are rooted in the law of persons. Succession law often brings in issues of family law, such as the status of illegitimate persons and adopted persons, and, nowadays in many legal systems, the possible rights of cohabitants. 2 With this qualification, that in the Common Law world, only land law is in the core. 3 Legal systems usually give the surviving spouse succession rights in intestacy, and also in testacy, ie, in the latter case, forced heirship rights. But in some systems the surviving spouse has no special succession rights (ie nothing other than what may be given in the testament, if any) on the ground that there matrimonial property law regime is sufficient. Nevertheless, I know of no legal system, except perhaps Poland,4 that actually places succession law within the law of persons. The Pandectists took the view that succession law should be regarded as a separate and distinct branch of private law, independent of both property law and family law, and that approach soon became the norm. In general, no code before about 1875 had succession law as a distinct book, and all codes after that date have had it as a separate book, but further research would be needed to confirm details and to check for exceptions. The Roman and ius commune map The Ius Commune inherited the Gajan scheme: 1. Personae 2. Res 3. Actiones “Res” is usually translated into English as “things” but its meaning is broader than the English word, Most private law comes under the heading of res. The problems of this scheme became apparent in the 19th c. The German map The German civil code is typical: succession law has its own separate book. 5 1. Allgemeiner Teil 2. Recht der Schuldverhältnisse 3. Sachenrecht 4. Familienrecht 5. Erbrecht The Dutch map The Dutch civil code also places succession law in its own book: 1 Personen- en familierecht 2 Rechtspersonen 3 Vermogensrecht in het algemeen 4 Erfrecht 5 Zakelijke rechten 6 Algemeen gedeelte van het verbintenissenrecht 7 Bijzondere overeenkomsten 7A Bijzondere overeenkomsten; vervolg 8 Verkeersmiddelen en vervoer (9 Absent: reserved for IP rights) 10. Internationaal privaatrecht The French and Belgian maps 4 I make this qualification because I note that succession law is included in Stanislawa Kalus and Magdalena Habdas, Family Law in Poland (2011). 5 By contrast, the Prussian civil code, while it devoted a distinct unit to succession law, did so under the general heading “Von der Erwerbung des Eigenthums überhaupt, und den unmittelbaren Arten derselben insonderheit” (Part 1,Title 9). Within that title, Section 8 was “Von Erwerbung der Erbschaften.” I would guess that the Part 1 Title 9 conception was the basis of Book 3 of the French civil code. French law, and many systems following it, have a complex and dysfunctional structure. Titre préliminaire : De la publication, des effets et de l'application des lois en général Livre I : Des personnes Livre II : Des biens et des différentes modifications de la propriété Livre III : Des différentes manières dont on acquiert la propriété Livre IV : Des sûretés Property law is to be found not only in Book II but also in Book III and Book IV.