EL LLAMAMIENTO DE LOS HIJOS EN LA SUSTITUCIÓN FIDEICOMISARIA CONDICIONAL SI SINE LIBERIS DECCESERIT: IGUALDAD EN MATERIA SUCESORIA Y PROHIBICIÓN DE DISCRIMINACIÓN POR RAZÓN DE FILIACIÓN ADOPTIVA.

Abstract

Relations between the substitution of heirs and doctrine are conflicting, to say the least, as revealed by their fluctuating, contrast-filled story. Dissertation on the substitution of heirs was rife in the florid legal literature of intermediate law (between the fall of the Roman Empire and the rise of codification) but fell into apparent oblivion as the substitution of heirs came under censure as an institution that sowed poverty and inequality by removing certain assets belonging to the great fortunes of the land from economic trade. In more-recent times, through Act 41/2003 of 18 November, which authorised the encumbrance of the reserved portion of the deceased's estate with a beneficiary substitution, part of the lost interest has been regained. Altogether, although doubt has been cast on the relevance of this procedure (and the relevance of beneficiary substitution, in which the heir or trustee is the first to succeed the decedent or founder of the trust, and the beneficiary will receive the legacy after the trustee), the fact is that beneficiary substitution si sine liberis decesserit has had and still has significance in Catalan succession law. There are records of its practice since olden times, in notarial archives and in judicial controversies where it has proved to be an important point. This paper reviews the literal wording of express testamentary dispositions concerning substitution of heirs. It also looks at how Supreme Court, Constitutional Court and European Court of Human Rights case law have approached the issue of interpretation, focusing on compliance with the verified condition after the Constitution and the call for heirs performed in accordance with the legal situation at the time when the substitution is to be done.