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This book reviews selected topics in the law of succession from a comparative and, in some instances, a historical perspective. It seems well to begin, however, with an overview of some of the comparative work that has already been carried out. Not only will this provide an idea of the present state of comparative work in the law of succession, but it will also serve as a context within which the other chapters in the book can be situated.
However, one cannot embark upon such an exercise without first asking a more fundamental question: what is the true nature of the law of succession? The primary function of the law of succession is to identify both the persons entitled to succeed to the deceased and also the property they are to receive. From the perspective of the testator (if there is a valid will) it guarantees, as far as the law allows, that the property reaches the destination determined by him. From the perspective of the heirs it guarantees that the property is transferred to them in a lawful and orderly fashion. Consequently, the law of succession facilitates continuity, it prevents self-help and it ensures a smooth transfer of wealth upon death.
In the course of this chapter it will become clear that the law of succession needs to be analysed within a broader economic and social context. This is because it fulfils both an economic and a social function.
By comparison with other areas of private law, the law of succession has fallen into neglect. Academic literature is surprisingly sparse even in relation to national systems of law, while such comparative treatments as exist are often little more than country-by-country summaries. Yet succession law is on the move. Some causes are discussed in the first chapter of this volume. The relationship between family law and the law of succession has become more apparent and better understood, and the impact on the latter of changes in the former can be seen, for example, in the shift of focus from the “nuclear” family to a more inclusive concept which extends to partners outside of formal marriage. In another important development, human rights instruments have led to restrictions on freedom of testation, to the removal of succession rules which discriminate against, for instance, the extra-marital child, and to a reconsideration of aspects of customary succession systems. Above all, social and economic change has had, and will continue to have, a marked influence on the law's development. As these trends are not confined to any one country, they present a challenge to the view, hitherto widely held, that succession law is a matter of local concern and local practice, and that little is to be gained from comparative research. One result has been a new interest in the possibility of harmonisation of succession law, especially in the European context. Another has been to open out the vista for more focused comparative research.