A.9.2. The lack of the Erbverzicht is no loss

No. 2.5 of chapter III dealt with the Erbverzicht.This was partly because disclaiming the inheritance is a very far-reaching example of what can fall under the prohibition of article 4:4 paragraph 1DCC.

The Erbverzichtsvertrag is not a last will and testament, but a legal transaction inter vivos, that takes effect after death, to which in principle the general rules of contract law apply. In that sense it is not possible to speak of contractual succession law. The Erbverzicht is perceived as a method to, during life already, give shape to the pending inheritance: ‘vorweggenommene Erbfolge’. In the‘Verzicht’, the person relinquishing is in principle excluded from the intestate laws and the legitim rights. As a rule, it has become apparent, that the waiver is done for a consideration. Given the context in which the Verzicht is used, one can wonder whether not having this institute is such a loss for us. In no. 2.5.3 of chapter III, I quoted Schlüter to illustrate the importance of the figure in practice. He mentions it as motive to prevent (agrarian) businesses from going down the drain as well as enabling parents to give certain children their portion in the inheritance during their life already, so that their children can build an existence.

As with new succession law inThe Netherlands there is now a legitimate share governed by the law of obligations and as the legitimate fraction always only amounts to half the amount, I do not feel a figure such as the German Erbverzicht is required. Especially not if one looks at the way the Erbverzicht is applied in practice, as appears from literature. I also point to the existence of article 4:70 DCC. Everything a forced heir obtains through donation, is subtracted from his legitimate share. In that sense it is also possible in The Netherlands for a child to receive his portion in the inheritance/legitimate share whilst the parents are alive, without a child ‘again’ getting his share upon death. It is also important to mention that for calculation the legitimate share, the value at the time of the gift is the starting-point (article 4:66 DCC). In principle, increases in value of donated goods are left out of the equation, so that the testator has more scope than within the former succession law.

The way the contribution is provided for in article 4:229 DCC and following must also be mentioned in this context.

It is easy for a testator to prevent the fragmentation of a business in terms of the law of property. Indeed, joint ownership does not have to come about any longer.

It can also, if need be, be avoided that economic problems pertaining to the business’ continuity arise. Article 4:74 DCC contains a workable provision. However, it must be possible to link this clause to the sum of money meant in article 4:122 DCC in the case of a pseudo-specific legacy and it must be possible to use it contractually, as I wrote under no. 6 of the present summary.

Therefore, in my view, there is no need for the Erbverzicht, all the more so as the Erbverzicht is a ‘Risikogeschäft’ as described in no. 2.5.4 of chapter III.

It appears from the field investigation that the notarial profession is divided concerning the desirability. I refer to table 7.