A.9.1. The closed system only has a repressive function

As I argued in chapter I, the closed system does not have a function regarding the protection of creditors, although the legislator apparently meant it to have such a function.The ‘pillars’ mentioned in chapter I provide said protection.

The definition of article 4:42 paragraph 1 DCC and the further development thereof in parliamentary history sets the last will and testament sufficiently apart from other legal transactions with effect after death. A closed system is ‘convenient’ in that respect, but not necessary.

The sole function of the closed system is the repression of succession law figures such as the ‘ouderlijke boedelverdeling’ (former article 4:1167 DCC) and the ‘legatum per vindicationem’. One can also think of appointing the civil-law notary in charge of the estate as a ‘boedelnotaris’ by last will and testament or creating a charge (last) without the authority of claiming a ‘cancellation’ (vervallenverklaring).This function can be compared to what the German legislator aims at with the ‘erbrechtlicher Typenzwang’.

I hold the view that in principle there are no objections to this repressive function. It prevents a ‘mess in terms of succession law’.That’s all the closed system entails: an ‘organizing function’. I can not think of insurmountable objections.With testamentary dispositions, specific legacies, charges, executor’s duties and administration and the like the testator has a wide range of options to give shape to his succession law desires, in an orderly fashion.