The absolutely impeccable interpretation given by the Supreme Court Judgment of 3 June 2014, in the report of Judge Javier Orduña, regarding the extension to psychological mistreatment of the cause of disinheritance for mistreatment by word or deed, has given rise to a wide debate. Notarial testamentary practice in common law teaches that, in those cases, all of them painful, in which a testator wishes to disinherit a legitimated beneficiary for serious reasons, the Civil Code is little or not at all in line with reality. So-called mistreatment by word or deed requires solid proof given the reversal of the burden of proof in favour of the disinherited. And denial of maintenance is impossible without civil action, which almost all parents do not want to do. I can cite a case of a final judgement for abuse by a son in the use of a power of attorney given by his father, whom he plundered, albeit with very good manners, so that he could not be validly disinherited. Or the case, unfortunately frequent, especially in recomposed families, in which there is not the slightest relationship, not even in sight, between parents and children. Absence of treatment that in Catalonia would be enough to eliminate the weak legitima, characteristic of its system. The legitima is a historical manifestation of the principle of intergenerational solidarity, as indicated by the German Supreme Court in a ruling of 19 April 2005 in the course of the reform that was made in that country of the legitimacy system and the statute of limitations, in force since 1 January 2010. France, Belgium and in Spain, Catalonia, Aragon, the Basque Country and Galicia have also modernised - to a lesser or greater extent - their inheritance law over the last fifteen years. In common law, except for some sectorial and timid changes for the spouse (2005), family business or incapacitated persons (2003), the traditional legitimacy system is maintained. Although it is true that the oscillation, in the different Spanish systems, between the absolute freedom of testamentary rights of Navarre Law and the strong legitimation system of Common Law, prevents the application of the principle of public order in its justification (as a STS of 15 November 1996 had to remind us), it is no less true that a legislative reflection on this matter is required. The principles have already been sufficiently studied. They are based on the maintenance of the legitimacy system with a profound flexibilisation. Broadly speaking, the following can be pointed out: extension of the lawful cases of disinheritance (the judgment that motivates this commentary is a good start); modification of the legitimate portion from a pars bonorum (strong) to a pars valoris (weak), that is, elimination of its real nature; modification of the regime of imputation, computation and reintegration of the estate, limiting terms and its real nature; uniform extension of the rights of the spouse to the common-law partner. The situation of common law is unprecedented compared to the totality of the autonomous civil systems and those derived from public law: administrative and social security. The conflictual chaos that exists in Spain in this area, given the plurality of legal systems, is inexcusable and requires the exercise by the State of its constitutional competence (149.1.8 CE). In a possible reform, it would be necessary to add the improvement of the legitimate position of the spouse - and, as has been indicated, of the unmarried partner - in relation to the ascendants; the abolition of the legitimate position of the ascendants should be analysed by replacing it, if necessary, with a right to maintenance, as has been done in Belgium. Notarial practice also shows the unfairness of the situation and the surprise of the testator when the couple's only asset is their home - in terms of marriage, if it is a de facto partnership, they have no rights other than those acquired inter vivos. The habitual residence is often mortgaged with death repayment insurance and both the home and the insurance capital is inherited in large part by the ascendant and repurchased by the surviving partner or its ownership is shared, sometimes with such a diminished capacity in the ascendant that it is really with his or her brothers and sisters-in-law. This is a situation that must be corrected. Finally, it is not desirable to fragment the legitimacy regime, often understood as privileged, as in the case of the family business or, in another area, that of the disabled, despite having an economic or family justification.
Regulation (EU) 650/2012 on international succession upon death did not, in the end, introduce a specific mention in Art. 35 (public policy) of reserved portions (reserved shares), although not without much discussion. However, the prevalence of the law applicable at the time of the testator's death over gratuities, insurances, funds or trusts, constituted by the testator under another law in the past, is maximalist, since the applicable law is universal and we are not talking about Spanish, French or German law, but can be that of any country in the world where the testator had his habitual residence at the time of death. The situation regulated in the Regulation implies provisionality and legal uncertainty. It will depend on an unforeseeable law of succession at the time of the disposition, except as a precaution of limited professio iuris, whether the action for reintegration into the estate is personal or real, whether it is time-barred in fifteen or thirty years, or even whether it is imprescriptible. This is in the name of the ideology of the reserved parties, thus erected as a community principle. This issue is one of the major shortcomings of the Regulation and the reason for the non-participation of the United Kingdom and Ireland ...... they can.