Thus reopens the classic debate between defenders of the legitime and defenders of freedom of testation. I call it “classic” because even in the process of drafting the Civil Code of 1889, the relevance of incorporating this institution into our legal system was discussed. In Catalonia, the drafters of the 1960 Compilation of Catalan Civil Law, predecessor of the current Civil Code of Catalonia (“CCCat”), raised the same questions. Since then, the necessity of the legitime or lack thereof has been discussed periodically.
The purpose of this article is not to offer an opinion, but to try to dismiss some of the misconceptions that we have about the legitime in Catalonia.
The legitime is not a limitation of the testator’s power of disposal, it is a personal right that the legitimario can exercise against the heir.
We’re accustomed to defining the legitime as the portion of the estate that the testator cannot freely dispose of because the law has reserved it for specific heirs who are therefore called “forced heirs”. Yet this understanding is specific to the Civil Code, and is not shared by all regional laws.
Thus, in Catalonia, the legitime is not a limitation on the power of disposal, but a personal right granted by law under which the legitimarios (children and descendants, and if they do not exist, the testator’s mother and father) can claim from the heirs a quarter of the amount resulting from the value of the inherited estate at the time of the deceased’s death. In other words, the legitime doesn’t prevent the testator from leaving what they want to whom they want. Nor does the testator pay it; the heirs do.
In Catalan law, Jou Mirabent reminds us, there are no “forced heirs”, and it is incorrect to use this expression in wills, lawsuits or decisions, as it is so often used in mimicry of the formalities used in the Civil Code system. Therefore, at least in Catalonia, we cannot argue that the legitime limits the testator’s power of disposal.
Disinheritance does not consist of depriving the legitimario of the inheritance, but depriving them of their personal right to inheritance recognized by the law.
The testator, in use of the full power of disposal we spoke of earlier, can designate someone who is not a legitimario or who is a stranger as an heir and leave them the entire estate. It is a different matter if, foreseeing that the legitime claim supposes a reduction of the assets that will be left to their heir, the testator wishes for whatever reason to deprive the legitimario even of this personal right to the inheritance. This is what is known as disinheritance, which consists not of depriving a legitimario of the inheritance, but depriving them of their legitime.
That said, it should be noted that the mere desire of the testator is not enough to disinherit. One of the reasons expressly established by the law must exist (art. 451-17 CCCat). It is also advisable to comply with some strict formal requirements. Despite these precautions, the disinherited person may contest their disinheritance within four years of the death, arguing that the alleged reason was not fulfilled or that they had obtained the forgiveness of the testator after having been disinherited (art. 451-19 CCCat).
Of course, after explaining this to a client interesting in disinheriting their child or descendant, it’s most common for them to exclaim in frustration that the law doesn’t allow them to give their money to whoever they want. This frustration often makes both laypeople and professionals describe the institution of the legitime as anachronistic, in comparison to the laws of Anglo-Saxon countries with full freedom of testation. A quick glance at history and comparative law will show us just how wrong these claims are.
The legitime cannot be described as an anachronistic institution.
Merriam-Webster defines anachronism as “a thing that is chronologically out of place”. However, the legitime is, historically, an institution which came about much later than freedom of testation. The Law of the Twelve Tables (5th century B.C.), the first code of Roman law, gave the pater familias (oldest living male in a household) unlimited power with respect to their property and the people under their authority, including, even more horribly, the right to life and death (aut vita aut nequis). As a logical corollary, freedom of testation was proclaimed.
It wasn’t until the final days of the Republic that the legitime emerged as we know it. Ascendants who didn’t leave anything to their descendants without just cause were considered to be violating their moral duties, and holding them accountable for a lack of judgment, their will was allowed to be contested if they had assigned one of their descendants less than a quarter of the inheritance.
Can we really describe an institution that has addressed the arbitrariness of the testator from Roman times to the current CCCat as inappropriate for our era? Are there perhaps other mechanisms that avoid such arbitrariness?
Anglo-Saxon countries tend to restrict freedom of testation in favor of the testator’s closest relatives.
Not even the common law countries England and Wales retain an absolute freedom of testation. In 1975, the Inheritance (Provision for Family and Dependants) Act was enacted there, which allows the judge to order that the deceased’s dependents receive the provision of the estate necessary for survival or to maintain a standard of living similar to that previously had. The family maintenance system also continues to be used in New Zealand, Australia and some parts of Canada.
And in the United States? There is indeed freedom of testation, but if the testator doesn’t leave anything to their closest relatives and they contest it, the courts demand that the formation of free consent be demonstrated. And, even proving this, they argue that a will which deprives children of inheritance without reason shows that the testator is acting against “what is natural” or that they “are not acting as a judicious parent”, declaring the will invalid.
In one way or another, countries which have the greatest freedom of testation tend to restrict it in favor of the closest relatives of the deceased. In the end, they follow the same path that we have traveled with the legitime since the times of Roman law.