What is forced heirship?
In England, Wales and Northern Ireland clients can leave assets to whomever they choose. However in most European countries, including Scotland, this is not the case. The laws of succession define specific rights for certain persons (the protected heirs). Whatever a will might say, it can easily be overturned by the protected heirs. This is known as forced heirship.
Forced heirship rules restrict the ability of a testator to decide how his assets should be distributed after his death. The exact rules differ from country to country. Whilst some countries may insist that upon death all the property of an individual domiciled in that country must, in every circumstance, pass to their forced heirs, other countries may permit a testator to give away a proportion of his estate, provided the balance passes to forced heirs.
It could be argued that forced heirship also includes intestate succession; however, this is not considered for the purposes of this document.
Why is forced heirship used?In some jurisdictions it is considered perfectly proper for testators to be required to make adequate provision for their dependants.
Why is forced heirship not used everywhere?Critics of forced heirship suggest that testators should be allowed to distribute their estate or a proportion of their estate as they wish, and that prohibiting them from doing this cannot be any more valid on death than during lifetime.