A.9.4. The provision for pseudo-legacies should be worked out in further detail

The provision for pseudo-legacies is a provision within the framework of protection of creditors.

Through a fiction in terms of succession law in article 4:126 DCC, claims that can be made valid upon death are considered as legacies, if a danger could arise for creditors. These pseudo-legacies are included in succession law, as far as the order of rank of the various creditors of the inheritance is concerned. In principle, the specific legacy-fiction only applies to the ‘recovery’ and the ‘reduction’. The provision needs to be elaborated in more detail on several issues. I refer to no 1.4 of chapter IV, and specifically to nos. 1.5, 1.6 and 1.7 of chapter IV, fromwhich it appears that the equalisation‘concerning the recovery and reduction’ is not all that clear and leads to questions. For instance the question whether a pseudo-specific beneficiary/donee is liable for the legitimate share as such, the question whether a revocable pseudo-specific legacy can be subordinated, by last will and testament, as far as the reduction is concerned, to other specific legacies and the question whether, also in the field of pseudo-legacies, a distinction is made if the pseudo-legacy is made to fulfil a natural obligation.

I specifically want to draw the attention to the issue of whether, in the case of a pseudo-legacy, the attribution meant in article 4:71 DCC plays a role. I believe this to be the case, but clarification would not go amiss. I refer to no.1.7.2 of chapter IV.

In no. 3.1 of chapter IV I described another flaw, in the sense that one could argue that obligations stemming from a pseudo-legacy in the sense of article 4:126 paragraph 2 under a DCC are entirely ignored when calculating the legitimate share, and not only in part, to the extent a reasonable consideration is lacking.

Generally speaking these issues can be solved satisfactorily, but they should not be an issue at all. If the fiction is broadened, so that it not only concerns the ‘recovery and reduction’, or if it is expressly indicated how far the pseudo-legacy provision reaches by elaborating the legal consequences in the wording of the Act, problems evaporate. An improvement could also be made if the provision of pseudo-specific legacies is looked into again, but only from the point of view that it is a provision for the protection of creditors and not the provision of pseudo-succession law. This avoids a large part of pseudo-succession law falls by the wayside, for instance regarding procedural requirements, but also regarding the ‘other legal rights’ or the mention in the central register of wills. I refer, amongst other matters, to no.1.9 and no. 1.13 of chapter IV.