Särskilda skäl - om undantaget i det förstärkta laglottsskyddet

The right of inheritance is supposed to ensure that an offspring receives part of the parents' property when they die. In Sweden, the part that an offspring to the deceased is guaranteed is half of the estate divided by the number of siblings. This part is the reserved portion (portio legitima). This means that a parent's right to bequeath property is limited. Only half of a parent's property can be freely distributed outside the circuit of offsprings. In order to prevent a parent from elude the judicial regulation, there is also a provision which says that a donation before the demise, where the intention is to arrange the distribution of property after death (donatio mortus causa), should be legally treated as if it was arranged in a will. Anyone who receives a donation, or gets property through a will, must return this to the extent that the portio legitima is secured. When it comes to donatio mortus causa, however, there is an exception. A gift given under these circumstances can be valid if there are special reasons. The legislature has essentially given the judicial assessment in this respect to the courts, to decide in the individual case what these special reasons should be. A donatio mortus causa is regulated in Arvdabalken chapter 7 § 4. The principal rule is that a donatio mortus causa should be refunded, but the focus of this essay is the application of the exception. Under what circumstances can it be said that special reasons for not applying the general rule exists? In order to answer this question, legislative history has been examined. However, since this is mainly decided by the courts, most of the investigation is a study of case-law. In the preparatory materials, only one example is mentioned when the exception should be applicable; a gift should not be refunded if this means excessive harshness to the gift recipient. In the courts, however, it has come to apply in slightly different situations. For example, when someone has been compensated for labor. Another example is when the parent wants to compensate an offspring for an injustice that previous gifts to another offspring have caused. Situations where the exception were found not to be applicable have been about a gift between spouses, where the gift recipient is considered to be the one from whom the property was originally derived. The courts also appears to be restrictive with the exception when an offspring has behaved in a way towards the parent that have resulted in feelings of resentment. Furthermore, it does not seem to matter if there is a lack of social or economic relationship between the parent and the offspring. Otherwise, there is not much guidance in neither the legislative history nor in case law. To a large extent, it is up to the court to try to find, in the individual case, the solution that appears most reasonable based on some general sense of equity.