A.2. The Erbvertrag or the gemeinschaftliches Testament?

German succession law is an important source of inspiration. Not only because Meijers, when drawing up the draft of the current Book 4 of the DCC, looked across the borders many times, but specifically because it appeared from no. 3.7 and no. 4.6 of chapter V that succession law with binding elements is common in German practice. Which institute, the Erbvertrag or the gemeinschaftliches Testament, is the most compelling?

When comparing the Erbvertrag and the gemeinschaftliches Testament to one another, one mainly finds the following differences and the related advantages and disadvantages.This can be derived from chapter V.

A particularly striking difference between the Erbvertrag and the gemeinschaftliches Testament is that anyone can make use of the Erbvertrag, whereas the use of the gemeinschaftliches Testament is only granted to people married to one another, and currently for the ‘Lebenspartner’ as well. Even people who are engaged to be married do not have this institute at their disposal.

It is possible to execute the gemeinschaftliches Testament privately. For the Erbvertrag to come about, on the other hand, the assistance of a civil-law notary is required. One can consider this as an advantage (Belehrung), but also as a disadvantage (costs). Personally, I consider the fact that the gemeinschaftliches Testament can be executed privately as an important shortcoming. Privately executed wills are ‘useless’ and should be challenged, given the complexity of succession law and particularly given the far-reaching legal consequences the gemeinschaftliches Testament can have.

The most important difference lies in the fact that in the case of the Erbvertrag the binding takes place immediately, whereas in the case of the gemeinschaftliches Testament the binding takes place after the first person to die passes away.Revocation is always possible whilst the two spouses are alive. Furthermore, the gemeinschaftliches Testament makes it possible to prevent binding by not accepting an acquisition. In the case of the Erbvertrag this is only possible if a ‘right to stand down’ has been stipulated.

In order for an Erbvertrag to come about, at least one disposition must be made binding (‘Verbot des Totalvorbehalts’). In case of a gemeinschaftliches Testament this requirement does not exist and it is therefore also possible without binding to prevent the possibility of the dispositions being secretly revoked (by excluding the binding nature of the dispositions concerned). In that case, testators only choose the ‘Offenheitsprinzip’. See no. 4.3.2 of chapter V. After the first person to die has passed away and after the acceptance has taken place, the gemeinschaftliches Testament and the Erbvertrag are similar to a large degree.

In case of an Erbvertrag binding is also possible if only one of the parties makes dispositions (einseitiger Erbvertrag). For the gemeinschaftlichesTestament, the mutuality requirement of ‘wechselbezüglichkeits’ is made, implying dispositions from both sides.

In the case of a gemeinschaftliches Testament only wechselbezügliche dispositions can be made binding. In this respect the Erbvertrag offers more possibilities.

In Germany, when a testator is free to choose from both options, it has to be considered on a case by case basis which institute is the most appropriate for meeting the wishes in terms of succession law.

Given the important impact of binding in terms of succession law, and the fact that I assume that not everyone realises what said binding implies for them, I have a preference for the gemeinschaftliches Testament. However, the gemeinschaftliches Testament should be available to a larger group of individuals.

I find the ‘Offenheitsprinzip’ particularly compelling, as well as the fact that in the case of the gemeinschaftliches Testament, the far-reaching legal consequence of ‘binding’ can, if one wishes, be excluded, which is not possible in the case of the Erbvertrag. In my view, the possibility to make sure that a disposition can not be revoked secretly meets a need. I refer to table 14.

The general binding in terms of succession law, which can also be reached with the gemeinschaftliches Testament, is far-reaching and therefore potentially dangerous, particularly if used too often in a standard way. Naturally I do not mean to trivialise the desire to make the successor or specific beneficiary’s expectations more concrete than is possible with an ordinary last will and testament. I will get back to this subject matter at a later stage.

Table 15 indicates which contractual succession law provision the notarial profession would prefer, if possible. What is preferred, is the element of ‘being bound after enjoyment’ (i.e. as opposed to being bound at the moment the will is made) of the gemeinschaftliches Testament. A provision of a general nature, such as the one in the Erbvertrag, also gets high marks, as well as a combination of provisions comparable to the gemeinschaftliches Testament. The fact that I prefer the gemeinschaftliches Testament to the Erbvertrag mainly lies in the fact that for the first option the binding is less far-reaching and it is possible to escape the binding at the last moment. I also find it particularly compelling that a secret revocation is not possible. Only a group of about 11% of the respondents shares my enthusiasm about this element, as solitary (i.e. with one single element) provision.

It would do German succession law no harm if the legislator took the best elements from both provisions and devised one clear-cut provision to prevent the situation in which even the notarial lawyer can not see the wood for the trees. Having said that, I admire the German system.