Law 10/2008, of 10 July, of the Fourth Book of the Civil Code of Catalonia, Regarding Successions Section 200-00017/08

Law 10/2008, of 10 July, of the fourth book of the Civil Code of Catalonia, regarding successions Section 200-00017/08 PREAMBLE I. PRINCIPLES AND PROCEDURE In line with the Catalan civil law coding scheme as set out by Law 29/2002, of 30 December, the first law of the Civil Code of Catalonia, this law gives approval to the fourth book of the Civil Code relating to inheritances. Notwithstanding the provisions of article 6 of the aforementioned law, it does not do so by introducing amendments that add to, remove or newly draft current regulations; rather, it entails a complete alternative text, thereby avoiding the difficulties brought about by subsequent consolidation. It is known that Catalan law had already set out provisions in this sphere with a calling to achieve completeness by means of Law 40/1991, of 30 December, on the Code of Succession mortis causa in civil law in Catalonia. The law that is currently being passed follows in the footsteps of its predecessor and preserves its foundations, its basic institutional structure and even the drafting in the case of many articles. Nonetheless, the opportunity afforded by the incorporation of its content into the fourth book of the Civil Code has been taken in order to update a large number of its institutions and rules and, in certain areas, to conduct major reforms. In this regard, it is important to not overlook the fact that, although the Code of Succession was a somewhat recent text that had been in force for sixteen years, a major proportion of its articles stemmed from the 1960 Compilation or the 1955 Draft Compilation, legal bodies that have become rusty on account of the historical circumstances in which they were drafted. The work undertaken to bring matters up-to-date by means of this law has been based on an acknowledgment of the high technical quality of the Code of Succession and its comparative utility in practice. Accordingly, a review of this code is solely aimed at tailoring its content to suit the transformations that have been witnessed in terms of the economy, society and the family in recent decades, and at taking advantage of professional and legal experience built up in order to amend or remove dubious regulations, make up for any shortcomings and make its extrajudicial application easier. In light of all this, the fourth book incorporates new technical aspects and other areas reflecting legal political decisions that have a manifest effect on society. These latter aspects mainly involve the comprehensive overhaul of the succession agreement system, the reconsideration of the rights of succession in intestate succession between spouses or cohabitants, the amendment of rules for calculating the legitime, the regulation of the new organisation of the widow allowance and the elimination of reserves. The fourth book adheres to the structure of the Code of Succession whilst introducing two systematic changes. Title I of the Code of Succession – general provisions – forks out into two titles, whereby the second becomes title VI of the new fourth book regarding acquisition of the inheritance, which includes rules on acceptance and repudiation, the right of accretion, the community of heirs, division, collation and protection of the hereditary right. This systematic rearrangement, which already has its precedent in the 1955 Draft Compilation, falls in line with the timeframe in which the various stages of the inheritance phenomenon unfold. Secondly, title III of the 1 Code of Succession on wills becomes title II in the fourth book in order to show the centrality of testamentary succession, while title II of the Code of Succession, on inheritance pacts, becomes title III, which includes succession agreements and bestowals mortis causa. Despite a preference with respect to contractual inheritance as a foundation for the calling of inheritance, in this instance the greater statistical frequency of testamentary succession prevailed as a reason for it to come first. In addition to the titles mentioned, title IV of the new book deals with intestate succession, while title V envisages all other inheritance attributions determined by law, in other words, the legitime and the widow allowance. In substantive terms, the fourth book preserves the inheritance principles of Catalan law as they were provided for in the Code of Succession: the need for an heir to be appointed, universality of the status as heir, incompatibility of inheritance documents, the prevalence of the voluntary document and endurance of the inheritance document. These principles, for which Catalan inheritance law stands out from many other legal systems, have operated somewhat smoothly in terms of inheritance practice and it has not been considered appropriate to alter them. Likewise, it is well-known that when there are suitable grounds justifying it, the system sets out exceptions or variations, as pertinent. From a formal standpoint, it is necessary to point out the reduction in what could be deemed as superfluous, overly detailed or reiterative provisions, particularly when it comes to trusts. Consequently, compared with the 396 articles in the Code of Succession there are 377 in the fourth book. The rules have also been adapted in terms of presentation to fit in with current legislation techniques by dividing articles into sections and introducing headings which did not exist in the Code of Succession. Lastly, when it comes to the drafting of the texts, archaisms have been removed, a more direct drafting has been sought and care has been taken to bring the technical terminology used in line with that employed in the first, third and fifth books of the Civil Code and in other draft laws underway. II. GENERAL PROVISIONS Title I of the fourth book, which contains the general provisions on mortis causa inheritance, remains in line with current law to a large extent while incorporating the occasional technical or systematic amendment. The foremost systematic variations involve moving paragraph two of article 1 of the Code of Succession to become the new article 463-1 under the chapter on the community of heirs; moving the rule set out in sentence two of paragraph two of article 4 to article 425-4.1, relating to contingent substitution, with a new formulation; the introduction of article 411-8, on legal reversions and reserves, dealing with the elimination thereof in Catalan law; the inclusion of prohibitions on dispositions as set out in article 147 of the Code of Succession in the chapter on capacity for succession as instances of disqualifications; and the re-arrangement of the system concerning ineligibility for inheritance, which is dealt with in conjunction with the system for disqualification from succession. Substantive new aspects include, in the case of inheritance in abeyance, the regulation of consequences stemming from acceptance by one of the joint heirs if there are others who have yet to make a decision. In this instance, the unsettled situation is deemed extinguished and the fourth book opts for attributing ordinary administration of the inheritance to those who accept, waiting for the remainder to do the same or for the calls to be thwarted. In terms of capacity for succession, it is necessary to point out the rule redefining and broadening the grounds for ineligibility, specifically expanding on it to encompass individuals who commit crimes involving serious injuries, crimes against freedom, torture, crimes against moral 2 integrity – including crimes of domestic and gender-based violence – and crimes against freedom and sexual indemnity, whenever the causer or other individuals in the family unit are victims. The instance of ineligibility is expanded to also encompass non-payment of economic obligations imposed in marital procedures, which in the fourth book encompasses instances of commission of crimes against family obligations and rights, thereby including cases of failure to comply with custody obligations, child abduction and other forms of family desertion other than non-payment of allowances to the spouse, the ex-spouse or the children. Lastly, in relation to disqualification from succession it is worthwhile mentioning the addition of a section to the rule regulating the causes in this regard, by which limitations are placed on the likelihood of individuals, who provide care, residential or similar services to the causer pursuant to a contractual relationship, becoming favoured in an inheritance. The fourth book has not chosen to disqualify these individuals, deeming that such a drastic rule may give rise to unfair situations; however, in order to reduce the risk of manipulation of free will it seemed pertinent to require that the disposition be effected in an open notary will in these cases. III. TESTATE SUCCESSION a) Testamentary forms Title II of the fourth book focuses on testate succession and begins with a chapter on wills, codicils and testamentary briefs, regulating the kinds of wills and other acts that may contain provisions regarding last wills, the capacity requirements needed to execute them, their content, their formalities and the general rules for interpreting the provisions they contain. With regard to testamentary forms, the foremost new aspect has been the decision to eliminate the regular will executed before a priest, though this has a highly limited practical importance. Accordingly, in application of Catalan law there are two forms of will that can be executed: the notarized will, in the form of an open will and a secret will, and the holographic will. As a result, the ban on wills exclusively being executed in the presence of witnesses remains applicable, notwithstanding cases when they can be acknowledged as valid in line with the norms of international private law. The execution of wills and codicils is still bound by current requirements in terms of capacity, content and form. The fourth book specifies the instances when practitioners shall intervene in the execution of a will in order to certify that the testator has sufficient capacity and is of sound and disposing mind in order to do so, distinguishing whether the testator is judicially disqualified or judicially qualified to execute the will.

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