12.1.2018

Court case commentary KKO 2016:60; spouse’s right to inherit and a Last Will between the spouses

Commenting the preliminary ruling

The Supreme Court has discussed very detailed about the spouses’ right to inherit and questions concerning the reciprocal will between them relating to the reconsideration period of divorce.

The first question was if there are any kinds of special circumstances in the Code of Inheritance (perintökaari, PK) 3:7.1 §, which would remove impediments of widow’s inheritance right in the pending matter of divorce case.

PK 3:7.1 §: “Unless otherwise called for by special circumstances, a spouse does not have a right to the estate under this chapter if, at the death of the first deceased spouse, an action had already been brought for separation or for divorce or if the spouses had filed a petition for a judgment on the dissolution of the marriage or for separation. The same applies if the spouses had been granted a separation and the judgment had not lapsed by the time of the death of the first deceased spouse.”

The second question was validity of the reciprocal will; if there is any evidence at hand, which would revoke in accordance with the Code of Inheritance’s 11:8 § the presumption of ineffectiveness in this case.

PK 11:8 §: “If the testator’s fiancé(e) or spouse has been designated as beneficiary under the testament and the engagement is broken or the marriage dissolved thereafter for reasons other than the death of the testator, the disposition shall be invalid. The same apply in respect of a testament designating the spouse as beneficiary in cases referred to in chapter 3, section 7.”

The following points attracted attention in the Supreme Court’s argumentation:

The Supreme Court mentioned in its argumentation that according to the Code of Inheritance chapter 3, section 7 and the special circumstances included, it will be justified to consider that regulations concerning the divorce have changed. When the Marriage Act was altered on 1.1.1988 (the law of altering the Marriage Act 411/1987) so called notice-based divorce system came into effect. The Marriage Act’s former regulations concerning divorce (70-77 §) were based on culpability and in the other hand on broken relations. There was no regulation concerning reconsideration period prior the actual divorce.

The legislative changes concerning the divorce legislation emphasize according to the Supreme Court’s judgment careful and case-by-case evaluation of the social and mental cohesion of the spouses in considering if there still would be right to inherit in spite of ongoing reconsideration period.

It is easy to agree with the Supreme Court’s justifications. Because divorce can be filed more often in vague situations, where the final decision about divorce is still open, it might come more often up not to restrict the inheritance right.

The attention was attracted in The Supreme Court’s justification to a detail, in which the Supreme Court stated that the deceased spouse’s judicial education was a meaningful factor in total evaluation. ”A and B have made a reciprocal Last Will in favour of each other on June 6, 2008. B has not cancelled the Will before his death. B was lawyer, and he must have known the central principles of making Last Will and how it can be cancelled.”

The importance of this single matter in the Supreme Court’s total evaluation cannot be ”scored”, but it evokes the question, if it should be told to the spouses, that the reconsideration period might cause ineffectiveness in reciprocal will. When planning the reciprocal will between spouses, the divorce question is often a part of the discussion, so it could be natural to bring up also the matter concerning reconsideration period.

I believe the preliminary ruling in question will guide the legal praxis concerning mutual inheritance questions of spouses during the reconsideration period for strong and long.

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