Summary

Unlike the law of succession of many other countries, the Estonian Law of Succession Act does not expressly specify the age from which a person may make a will. This may give rise to an understanding that the provisions concerning active legal capacity prescribed in the General Part of the Civil Code Act also apply to the right of succession, i.e. a person between 7–18 years of age may make a will with the consent of his or her legal representative. Based on this, the author of this article raises the questions whether the making of a will is no longer a matter of strictly personal nature under the Estonian law of succession and whether a child of at least 7 years of age is mature enough to make a will. The author tries to find answers to the posed questions drawing on history, theoretical positions and the law of other countries. As a result of the analysis, the author reaches the conclusion that, under the Estonian law, the making of a will is a transaction of strictly personal nature and the demand of the consent of a legal representative for making a will is in conflict with the general principles of the law of succession. Nevertheless, the author does not consider it correct to interpret the law such that the minimum age limit for the capacity to make a will is 7 years of age in Estonia. However, the grant of the right to make a will to minors with limited active legal capacity is not unthinkable but it should be fixed in the law. Following the example of several other European countries, the author proposes to regulate the age for the capacity to make a will separately from active legal capacity and to grant the capacity to make a will to all persons who have attained 15 years of age.