A.7. The ‘house of cards-nature’

In the event of a ‘Wechselbezüglichkeit’ the consequence thereof, as broached in no. 3.3.3. and no. 4.4 of chapter V, is that, in certain circumstances, if a disposition has no consequence, certain dispositions of the other are cancelled, as it were as in the case of a house of cards. Dispositions can be made dependent on one another to a larger or smaller degree. Is this also possible in The Netherlands? Can the testator provide that the dispositions depend on the way of disposing by will or the revoking or not of certain dispositions of the person whom he, for instance, wishes to favour?

As remarked above, under no. 4.2 of the present summary, article 4:4 paragraph 1 DCC prohibits such provisions.

Would it be possible to achieve the desired independence with article 4:43 paragraph 2 DCC, which provides for the error in the motive? It is possible to make the disposition voidable by providing in the will that the disposition in question would not have been made if the testator had known that the person he wishes to favour has drawn up his last will and testament in a different manner than expected? I consider article 4:4 paragraph 1 DCC as a species in relation to article 4:43 paragraph 2 DCC, and therefore do not consider this line of thought as an option. Article 4:54 DCC, too, would stand in the way of imitating the German provision.

As such I have no problems with last wills and testaments ‘that form an obstacle’. I do not consider cautios in testaments, of whatever nature, as a phenomenon that must be challenged. Why should I not be at liberty to retract a preference in terms of succession law towards P, if P, whom I appoint as my heir in my testament, against my wishes, annuls certain voidable specific legacies that are wittingly part of my testament? I was under no obligation to appoint him!

It is my belief that the legislator takes a different stance. I refer amongst other matters to no. 2.4 of chapter III. An amendment of article 4:4 paragraph 1 DCC, directed at allowing ‘cautios in terms of succession law, is the- refore desirable.’

Should it be possible to link preferences in terms of succession law to a certain manner of disposing by will by the favoured person or the non-revocation of certain dispositions by him? I have doubts in this regard. How does the civil-law notary find out the data required when issuing the certificate of inheritance? I refer to the case dealt with in no. 2.3.2 of chapter III. In se, this issue could be solved by putting the burden of proof that, for example, a certain testament is the last one, on the ‘favored person as a resolutive condition’.

To the extent the conditionality of the testator’s dispositions is finished at the moment of his death, I see no objections. The disposition laying down that the partner’s family is only appointed if the testator has inherited from the partner, should not be forbidden. At present, with the broad prohibition of article 4:4 paragraph 1 DCC, I can not exclude that the judge also deems such conditions to be null and void.

It would be useful for this subject matter to get attention from practitioners and scholars, so that a discussion comes about on the question of how far the testators should be able to go with cautios.

Are there no alternatives? If the testator wants the person he wishes to favour to appoint certain heirs or specific beneficiaries, then the turbo-testament or the ‘two-stage disposition against contribution’ (tweetrapsmaking tegen inbreng) to be based upon that could serve this purpose. Suppose A wishes to appoint B as beneficiary, but only if B names C in his testament as only heir. Given article 4:4 paragraph 1 DCC, this is not possible at present.

A could appoint B as sole heir on a resolutive condition and appoint C as heir on a suspensive condition. The resolutive condition is C still being alive at the moment B dies.

This two-stage disposition in the sense of article 4:141 DCC prevents A from being dependent on B’s dispositions. A’s inheritance property eventually (either partly spent or not, depending on the shape given to the two-stage disposition) ends up in C’s hands. However, the two-stage disposition has no impact on the rest of B’s property. As survivor, he remains at liberty to dispose of his own property by means of his last will and testament. To solve this problem as far as B’s property is concerned as present at the time A dies, an additional resolutive condition could be linked to B’s position as heir. B can be obliged to put his entire property in A’s inheritance. Thus, C as expecting party has the prospect of the fiduciary’s heir property (present at the time of passing away of the settlor). I refer to no. 7 of chapterVI.