Introduction to succession

Question 1

Marckx v Belgium

Answer 1

1. Belgian law breached the ECHR by discriminating between legitimate and illegitimate children
2. If you were born in wedlock you could claim much more of your parent’s estate than if you were born out of wedlock
3. A mother had to formally adopt child, and was still unable to dispose of property fully
4. Child rights against the extended family were lesser
5. Articles 8, 14 and Protocol 1, Article 1 were breached

Question 2

Mazurek v France

Answer 2

1. Similar story to the Marckx case
2. An illegitimate child in France was limited to a 25% share of his mother’s estate
3. His legitimate brother was entitled to more
4. There was a breach of Protocol 1, Article 1 and Article 14
5. There was no objective or reasonable aim

Question 3

Fabris v France

Answer 3

1. An illegitimate child in France was denied the opportunity to seek abatement of inter vivos transfers of other children
2. France tried to argue that the provision met a public policy goal of the time
3. The Grand Chamber disagreed
4. There was a breach of Protocol 1, Article 1 and Article 14

Question 4

Mitzinger v Germany

Answer 4

1. National laws must not distinguish between legitimate and illegitimate children (or ‘natural’ and adopted children)
2. A law preventing illegitimate children born before 1st July 1949 from claiming legal rights was a breach of Article 14

Question 5

Pla v Andorra

Answer 5

1. Discrimination between adopted and ‘natural’ children is not permitted
2. Note that this case involved the interpretation of a will
3. What did the words ‘son of a lawful canonical marriage’ mean?
4. Could it cover the adopted son?
5. The court held that it could (controversially)
6. Testaments, or relevant discriminatory legislation, are to be construed to conform to ECHR

Question 6

C v Advocate General for Scotland

Answer 6

1. An army private died whilst stationed in Germany
2. Because he had died in Germany on a military base, his body was repatriated to the UK
3. He was survived by his widow and his mother
4. They firmly disagreed on what should happen to the body
5. They also both claimed the body
6. This was a judicial review of the decision of the Ministry of Defence
7. The Ministry of Defence said that it did not want to make the decision
8. “The question that this opinion singularly fails to answer is who has the better claim to determine where and how the deceased is to be buried or his remains otherwise disposed of” (per Lord Ordinary)

Question 7

C v M 2014

Answer 7

1. The court decided that the widow was entitled to the body
2. The court reached this decision on the basis that she was nearest in kin
3. The mother had been appointed as executor in the deceased’s will
4. This was irrelevant as it was the closest family member who was entitled to the body, not the deceased’s executor
5. This is different to English law, where it would’ve been the mother to be entitled to the body

Question 8

City of Edinburgh Council v Marcel

Answer 8

1. Marcel had parents that died in 1987 and 1994
2. Their bodies had not been buried
3. He had been keeping them on premises that he owned
4. He kept them in a frozen state
5. He planned to build a mausoleum for them
6. The bodies were taken to Edinburgh City Mortuary
7. The Council kept them for years and then decided something had to happen to them
8. Marcel said he wanted to build a big mausoleum
9. The Council took the case to court
10. The court held that the Council had to dispose of the bodies