Förskott på arv - En kritisk granskning av den svenska arvsrättens grunder och presumtionsregler avseende förskott på arv

Sammanfattning: This presentation aims to analyze the Swedish term förskott på arv, which means that an heir, during the lifetime of a deceased person, receives a gift which later will be deducted from his or her inheritance. The presentation intends to explain why the legislation has its current form, and to subsequently discuss alternative solutions. The Swedish legislation is based on the notion that a deceased person had no intention to favor an heir over the other, and that a gift, at the succession, shall be treated as if the deceased never gave it away. Legislation can be built on different grounds, and depending on which one that is chosen, the legislation will look completely different. Such a ground is the choice of kollationsform, which plays an important role for the regulation of förskott på arv. Kollation can be divided into two parts. The first; realkollation, means that a gift should be returned to the succession, or at least the value of it. The result will be the same as if the gift had never been given away, and enables equality between all heirs. Swedish legislation uses the other form of kollation, which is called idealkollation. This means that the heir is obligated to make a deduction of his inheritance, corresponding to the value of the gift. The heir is not required to bring the surplus back if the gift's value is greater than the inheritance of the heir. This means that total equality between the heirs cannot be achieved. To achieve total equality between al heirs, the legislation must include a regulation stating that the surplus must be brought back to the succession. The value of a gift varies greatly depending on when it is evaluated, thus the point of time in which the gift is reassigned determines how much the heir has to deduct. Under the current law there is a presumption regarding bröstarvingar (children or grandchildren of a deceased person) that specifies that a gift, which a deceased person left in his lifetime, shall be deducted from the bröstarvinges inheritance unless otherwise indicated by the circumstances. A change of the presumption has been discussed, which would result in deduction being considered only if the deceased specifically provided so. In my opinion, it is reasonable to assume that a deceased person who assigned a gift to a bröstarvinge during his or her lifetime, wanted to promote this heir over the others. A changed presumption would to a greater extent correspond to the will of the deceased. However, a reverse presumption requires that a person, who wants to achieve equality between his heirs, makes a special provision for this, which might be onerous. The existing presumption entails automatic assimilation between the heirs, which may indicate that this presumption is to be preferred over the other. Despite the benefits of the existing presumption, I believe that a reverse presumption is in greater extent consistent with, according to my opinion, the deceased persons intentions with the gift. The starting point should in my opinion, be that a gift is intended to benefit the recipient. However, it should be possible to achieve equality between the heirs, through a specific provision.