The Law of Succession

Testamentary freedom allows the testator the freedom to prescribe the disposal a property as s/he sees fit, allowing scope for provision to be made to those the testator considers fit who may not necessarily be members of his family who would otherwise be entitled to receive shares in the proceeds of his/her estate. According to Beckert, some of the aspects of the relationship between the testator’s individual right to dispose of her/his property as s/he sees fit as pitted against the family of the testator and society is inherent in the development of the law itself3. For instance, in earlier years, there was no right of inheritance per se because the family was viewed as a stable economic unit, which was immortal. As a result, when one individual died, s/he ceased to be a member of the unit, but this did not amount to a real transfer of property. Beckert points out the views of Max Weber, who believed that it was the emerging process of differentiation in acquisition of property, the significance of capital associated with land as a production factor, the prevalence of the dowry system and the separation of the household and the workplace which all contributed to the calculations of internal family relations and the assigning of property rights in the names of individuals4. The process also led to the dissolution of the household and gave rise to the question of determining how to assign property rights. Beckert argues that inheritance law must be viewed as a series of developments that occur in accordance with variations in the discourse, generating viewpoints that are recognized on a collective social basis. This leads to the development of institutions representing universally recognized norms of behaviour which are a reflection of the state of collective society at any given point in time. The development of testamentary freedom arises as a response to the dissolution of the family as an automatically stable, enduring unit, allowing more flexibility and incorporation of the individual desire of the testator.

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