A.3. A need for ‘binding elements’ in the Netherlands?

According to Schulte’s survey over 85% of the spouses in Germany dispose by will with (some extent of ) binding in terms of succession law. The surveys conducted by Rotering and Vollmer also indicate that the German citizen wishes some degree of binding in terms of succession law, even though many testators probably do not exactly understand the consequences of that manner of disposing by will. For the figures I refer to no 3.7 and no. 4.6 of chapter V.

My conclusion is that succession law with contractual possibilities is something that might, in certain circumstances, appeal to Dutch citizens too. Indeed, why would it be any different for us, in spite of the cultural difference? I refer to the results of the field investigation, particularly tables 3, 4, 13 and 14.

The person who drew up the German Civil Code took the fact that succession agreements were usual as a starting-point and complied with the practice of succession agreements. I refer to no. 3.1 of chapter V. In the Netherlands the contractual succession law provision was abolished on January the first, 2003. Did this happen because there was no need for any kind of binding in terms of succession law? To my mind, the provision discussed in no. 2 of chapter V was only abolished because the figure lacked transparency and had limited possibilities, due to which the notarial profession did not use it in practice. It even appears from tables 9 and 12 of the field investigation that the limited possibilities and the lack of transparency of the provision were not that much of a problem. The problem was that the notarial profession had no or only limited knowledge of the provision. Furthermore, the provision faced competition from the donation mortis causa. I definitely do not consider the fact that the Dutch contractual testamentary dispositions and specific legacies were not used as an argument to assume there is no scope for binding in terms of succession law in the Netherlands.

In the context of the abolition of contractual specific legacies, the minister only recently remarked that he deems the new succession and donation law leaves enough scope for irrevocable provisions towards surviving relatives. I refer to Chapter VI, no. 3. He too, apparently, considers there is a ‘market’ for binding elements pertaining to death.

Just likeVan Mourik, as touched upon in no. 4 of chapter II, I see the need to make the possibilities of getting married dependent on succession law perspectives. It might be better to refer to ‘perspectives pertaining to death’, because the title on the basis of which an ‘advantage’ is granted is not relevant as such. This need applies to cohabitation relations in general.I particularly consider cases in which the desire to have children is fulfilled and one of the partners takes on the household and therefore (possibly) sees his or her ‘earning capacity’ decrease, in part in the interest of the other partner. Having some sort of certainty in terms of ‘succession law’ can be of particular importance in such relationships. For those cases I think (pseudo)-succession law with binding elements can be of use. In such relations it has to be prevented that the trust of the partner, who presumes he will be the successor or specific beneficiary of his/her partner, is seriously shamed. In terms of succession law, peace and quiet should prevail within the marriage/relationship.

In view of the aforementioned aspect, among other issues, it is preferable, with legislation as it stands, to execute the ‘last wills and testaments protecting the rights of the surviving spouse’ separately in all instances. By removing the partner from the room where the deed is executed, the demand for ‘ in terms of succession law’ will, I believe, arise. From table 14 one could conclude that this demand already exists, but that it is not heard.

During the parliamentary proceedings concerning succession law the fact came up, as dealt with under no. 4 of chapter II, that someone, also outside of an affectionate relationship, can have plausible grounds to commit himself during one’s life towards another individual to a performance (by gratuitous title) upon death. Are mentioned the rewarding of ‘care performances’ and increasing someone’s creditworthiness. Notably in the event of care, such as for instance informal care [i.e. volunteer aid], it can be important for the person concerned to know that there is an acquisition mortis causa in store. In the context of business succession, too, provisions that take effect when someone passes away (before the succession has taken place during that person’s life) are very common, certainly as a makeshift solution. The prospective business successor is likely to want to have some certainty regarding the plans in terms of succession law of the person he hopes to succeed. He does not want to be sent off, none the wiser, with a revocable arrangement, he wants more than that.

The ‘other legal rights’ (article 4:38 Civil Code) can sometimes have a mitigating effect and constitute an improvement of our succession law.

In certain instances, especially in case of affectionate relationships in which trust is of great importance, one has to be able to commit oneself in terms of succession law, or at any rate ‘mortis causa’ to some degree. Notarial practice needs simple, irrevocable provisions mortis causa to comply with the range of needs their clients have.