A.4.3. Pseudo-succession law with binding elements

With the current definition of a last will and testament as provided for by article 4:42 paragraph 1 DCC, as described in chapter I, there is no doubt that an agreement that takes effect after passing away is not a last will and testament. With the freedom of contract as starting-point it is possible in principle to reach any degree of binding in terms of pseudo-succession law that is desired.

However, as argued in no. 3 and following of chapter III, these agreements will have to be checked against article 4:4 paragraph 2 DCC. Moreover, the agreement must not be contrary to public order and good morals in general (article 3:40 DCC). Most agreements will pass this test, which paves the way for pseudo-succession law with binding elements.

In itself pseudo-succession law with binding elements is not a new phenomenon.

Those familiar with notarial practice know that with final setoff clauses in matrimonial terms and for instance survivorship clauses in a cohabitation contract or in a deed of transfer of title many contractual provisions were made that took effect after death. I do, however, doubt that these provisions are intended to be ‘pseudo-succession law’, in the sense that they were used as alternative for the last will and testament that can always be revoked. I suspect that tax or cost motives were often the reason for these provisions and not the fact that the revocability of last wills and testaments could become an impediment for the parties. Making the legitimate share smaller could also be mentioned as a motive.

In no. 3.1 of chapter III the conclusion was drawn that agreements concerning certain goods with effect after death shall be valid in principle. Although masking the true purpose of the agreement does not help with the dissimulation theory as appeared from no. 3.3 of chapter III, prevailing succession laws provides a lot of scope for pseudo-succession law. Indeed, the prohibition only prohibits agreements that place someone in the position of successor in an indirect manner. The understanding is that the prohibition can also pertain to an agreement entered into concerning a third party’s estate.

The pseudo-specific legacies included in article 4:126 DCC also existed under the former law. It is not article 4:126 DCC that allows them and the article is also not the provision that paves the way to pseudo-succession law, as dealt with in no. 1.3 of chapter IV. The right to exist of the agreement mortis causa is derived from general property law and from article 4:4 paragraph 2 DCC, as well as from the new donation scheme. Article 4:126 of the DCC is only a part of the system that regulates the order of rank between different types of creditors of the inheritance. As remarked in no. 1.3 of chapter IV, the scheme can fulfil a role of ambassador to promote pseudo-succession law with binding elements (to the notarial profession).

With the offer that one can only accept after death it is, at first sight, possible to escape from the legislator’s grip in terms of succession law and to escape from the straightjacket of article 4:42 DCC, and therefore from the revocability. When the position of creditors is at stake, however, article 4:126 DCC comes into the equation. I refer to no. 2.4 and no. 2.6 of chapter I. As it is definitely and widely possible to enter into agreements concerning goods that belong to an inheritance that has not been subjected to devolution yet I do not see many possibilities for this offer in the practice of succession law. Side-stepping procedural requirements with the agreement mortis causa is possible too, provided article 7:177 of the DCC is complied with.

In my view, the donation ‘mortis caus’, that was dealt with amongst other issues in no. 2.1 and no. 2.4 of chapter IV, plays a crucial role in pseudo-succession law. By donation mortis causa I mean the donation (or gift) in general, in which the donee only actually receives what is reserved to him upon death of the donor. Whether or not the donation can be considered as a donation in the sense of article 7:177 DCC/pseudo-specific legacy of article 4:126 DCC. Although an acquirer pursuant to succession law does not necessarily acquire ‘by gratuitous title’, most dispositions by will are probably made out of generosity. In that sense the donation (or gift) mortis causa, as a contractual alternative, has an important function. The donation (or gift) mortis causa is therefore the primus inter pares of pseudo-succession law with binding elements. It also follows from the field investigation that the notarial profession sees a possibility for the donation mortis causa in practice. I refer to table 8.

A donation that the testator does not feel during his life bears a strong resemblance to a specific legacy by gratuitous title. As a donation is an agreement, the contractual element, that could, if necessary, be missed in the case of a legacy as a unilateral legal transaction, is present. With the donation mortis causa, as well as with other schemes mortis causa, the binding element can be made to measure in a way that can not be achieved by means of succession law.

The agreement as such can in principle not be revoked unilaterally and the donee mortis causa has more certainty than a specific beneficiary. Naturally, it still holds true that the donee mortis causa can also not receive money that simply isn’t there. If the provision is about a pseudo-specific legacy in the sense of article 4:126 DCC, a creditor in certain respects, specifically in the area of recovery (article 4:87 DCC) and reduction (article 4:120 DCC), only has the rights of a specific beneficiary. For contractual succession law, as it existed in The Netherlands up to January the first 2003, the former article 1:147 lid 2 DCC applied. This article gave the contractual successor or specific beneficiary more certainty than the mere fact that unilateral revocation was excluded in principle. I refer to no. 2.2.3 of chapter V. Rules such as those laid down in § 2287 and § 2288 of the German Civil Code – like article 1:147 paragraph 2 former DCC – seem unavoidable in order to further develop a provision pertaining to contractual succession law. As described in chapter V these provisions are far from simple. Moreover, the question arises to what extent these kinds of rules are ‘enforceable’ in practice. I find the simplicity of pseudo-succession law appealing. Indeed, in pseudo-succession law, a complicated provision of this kind is not required. General property law provides enough options. Just like a forced heir, the person favoured by means of pseudo-succession law can only bring an action for damages against the heirs, if (sound) performance fails to come about. This is clear-cut and in line with a succession law system that has a stronger focus on the law of obligations than on the law of property. If the claim in terms of pseudo-succession law is a pseudo-specific legacy as meant in article 4:126 DCC or is a donation or gift in any other way, then the forced heir takes precedence. The same applies in a system of purely contractual succession law.

Pseudo-succession law can play a useful role in those instances in which the contractual specific legacy also had or could have had a role.

The minister, too, sees possibilities regarding the donation mortis causa. See no. 4.3 of chapter VI. After the minister rightly came to the conclusion that it is not feasible to imitate ‘contractual testamentary dispositions’ by a donation mortis causa, he saw the possibility, however, to have a universal optional specific legacy adorned by a donation mortis causa. This is not justified, as I concluded in no. 3.3 of chapter III and no. 1 of chapter V with the dissimulation theory, but this does not change the fact that he too sees a role for pseudo-succession law. Pseudo-succession law has its limitations, but practitioners do not consider this too be too strong an obstacle.

It appears from table 16 that the majority of respondents do not consider the fact that it is not possible to imitate contractual testamentary dispositions with the donation mortis causa (yet) as an important disadvantage.

In view of the freedom of contract it is also possible to make the agreements mortis causa to measure, if one deems the absolute irrevocability of the provision mortis causa to be too far-reaching. Since the first of January 2003 this is even possible with the donation mortis causa with which, with this figurehead of pseudo-succession law, the ‘pseudo-testator’ is set free from the established lines in terms of succession law.

One could for instance imagine limiting the possibility of revocation to the event of a divorce and such. The revocability can also be restricted to a certain period in time. I find it particularly pleasing that procedural requirements can be linked to the revocation of this pseudo-succession law provision. Why not, for example, agree that a revocation can only take place by means of a copy of a notarial deed to be sent, by registered mail, to the pseudo-specific beneficiary? The pseudo-specific beneficiary thus knows where he stands and can take appropriate measures (certainty) if necessary. One of the elements of the German gemeinschaftliches Testament that I found particularly appealing, namely the ‘Offenheitsprinzip’, is within reach. The ‘Offenheitsprinzip’ was dealt with in no. 4.3.2. of chapter V as an important part of the gemeinschaftliches Testament. Pseudo-succession law provides even more possibilities because the provisions mortis causa can be tailored to the concrete and specific requirements on hand. No special limitations apply, to the exception of general property law and article 4:4 DCC.

Pseudo-succession law offers many possibilities. It is up to the practitioners to use them.