A.5. Pseudo-succession law with binding elements or purely contractual succession law?

Is it possible to meet the (existing) need for binding elements mortis causa with our modern succession law?

Given the ample possibilities the agreement mortis causa offers, current legislation provides enough scope, provided our succession law is modified somewhat. In my view, all things considered, it is not necessary to introduce a (complicated) provision based on the Erbvertrag and the gemeinschaftlichesTestament. Said provisions have been dealt with extensively in chapter V, no. 3 and no. 4. However, it was very inspiring to study the aforementioned institution in terms of succession law. Neither do I consider a comeback of the provision of contractual testamentary dispositions and specific legacies necessary to meet the demands of the clients/testators.

In practice it applies, in my opinion, that ‘mortis causa’ certain agreements should be possible concerning certain objects, such as a house or a concrete amount of money. Our law provides the possibility to do so.

A drastic legislative procedure, which would be brought about by the introduction of contractual succession law, is not appropriate (for the time being).

It is, however, necessary to, amongst other matters, provide contractual possibilities with article 4:82 DCC (non exigibility of the legitimate share) and article 4:74 DCC (specific legacy in instalments in connection with business succession). I refer to no. 6 of the present summary. An adjustment in this field does not entail a major operation.

A more general obligation/binding in terms of succession law than the one that can be achieved under prevailing law by the ‘agreement mortis causa’ is currently less appealing to me, all things considered. When studying the German provisions the objections became apparent. The fact that article 4:4 paragraph 2 DCC also prohibits pseudo-contractual testamentary dispositions and universal legacies is not such a bad thing. On the other hand, I hasten to add that the Dutch civil-law notary will make sure that figures of succession law will not be used in an over-simplified manner. It then has to be mandatory to call a civil-law notary in.

In this context is it also interesting that in Germany too, one sees advantages in working with the agreement mortis causa compared to contractual succession law. I refer to no. 1.2 of chapter IV. Are mentioned, among other issues:

However, these are not the items that persuade me to choose a solution within our current system over a system of purely contractual succession law. The advantage of the agreement mortis causa within the existing legal framework is, in my view, the fact that this does not require a drastic amendment. With a small change, the existing means, as mentioned in no. 6 of the present summary, make it possible to comply with the wishes that exist in practice in a simple manner without the risks that play a role in a system that makes it possible to appoint a successor or a universal specific beneficiary with binding.

By offering pseudo-succession law with binding elements as an alternative the revocability of the last will and testament is yet again underlined. This takes away the impression that last wills and testaments entail binding in terms of succession law. If the client/testator does not choose binding elements, the testaments should preferably be executed without the other partner being present.