Exploring the Law of Succession: Studies National, Historical and Comparative 9781474471947

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Exploring the Law of Succession

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EDINBURGH STUDIES IN LAW Series Editor Elspeth Reid (University of Edinburgh) Editorial Board David L Carey Miller (University of Aberdeen) George L Gretton (University of Edinburgh) Sir Neil MacCormick (University of Edinburgh) Hector L MacQueen (University of Edinburgh) Kenneth G C Reid (University of Edinburgh) Reinhard Zimmermann (Max-Planck-Institute of Comparative and International Private Law, Hamburg) Previous volumes in the series: Elspeth Reid and David L Carey Miller (eds), A Mixed Legal System in Transition: T B Smith and the Progress of Scots Law (2005) Hector MacQueen and Reinhard Zimmermann (eds), European Contract Law: Scots and South African Perspectives (2006) John W Cairns and Paul du Plessis (eds), Beyond Dogmatics: Law and Society in the Roman World (2007) William M Gordon, Roman Law, Scots Law and Legal History: Selected Essays (2007)

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EDINBURGH STUDIES IN LAW VOLUME 5

Exploring the Law of Succession Studies National, Historical and Comparative

Edited by Kenneth G C Reid Marius J de Waal and Reinhard Zimmermann

EDINBURGH UNIVERSITY PRESS

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© The Edinburgh Law Review Trust and the Contributors, 2007 Edinburgh University Press Ltd 22 George Square, Edinburgh Typeset in New Caledonia by Koinonia, Manchester, and printed and bound in Great Britain by Antony Rowe Ltd, Chippenham, Wilts A CIP record for this book is available from the British Library ISBN 978 0 7486 3290 9 (hardback) ISBN 978 1 4744 7194 7 (EPDF) The right of the contributors to be identified as authors of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988.

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Contents

Preface List of Contributors List of Abbreviations Table of Cases 1 A Comparative Overview Marius J de Waal

vii ix x xviii 1

2 Compulsory Heirship in Roman Law Reinhard Zimmermann

27

3 Succession Law in Scotland – a Historical Perspective W David H Sellar

49

4 Succession Law in South Africa – a Historical Perspective François du Toit

67

5 Freedom of Testation and the Ageing Testator J C Sonnekus

78

6 Testamentary Conditions and Public Policy James Chalmers

99

7 Forfeiture Clauses and Events in Scots Law Roderick R M Paisley

114

8 Revocation of Wills by Changed Circumstances M C Schoeman-Malan

141

9 Fideicommissary Substitutions: Scots Law in Historical and Comparative Perspective George L Gretton

156

10 The conditio si institutus sine liberis decesserit in Scots and South African Law Alan R Barr

177

11 The New Dutch Law of Succession Sjef van Erp

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193

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12 Revocability of Mutual Wills Alexandra Braun

208

13 Succession Agreements in South African and Scots Law Dale Hutchison

226

Index

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Preface

By comparison with other areas of private law, the law of succession has fallen into neglect. Academic literature is surprisingly sparse even in relation to national systems of law, while such comparative treatments as exist are often little more than country-by-country summaries. Yet succession law is on the move. Some causes are discussed in the first chapter of this volume. The relationship between family law and the law of succession has become more apparent and better understood, and the impact on the latter of changes in the former can be seen, for example, in the shift of focus from the “nuclear” family to a more inclusive concept which extends to partners outside of formal marriage. In another important development, human rights instruments have led to restrictions on freedom of testation, to the removal of succession rules which discriminate against, for instance, the extra-marital child, and to a reconsideration of aspects of customary succession systems. Above all, social and economic change has had, and will continue to have, a marked influence on the law’s development. As these trends are not confined to any one country, they present a challenge to the view, hitherto widely held, that succession law is a matter of local concern and local practice, and that little is to be gained from comparative research. One result has been a new interest in the possibility of harmonisation of succession law, especially in the European context. Another has been to open out the vista for more focused comparative research. These reflections were the stimulus for a working conference on the law of succession which was held at the University of Stellenbosch in March 2005. The book’s origins lie in this conference and in the papers read on that occasion. The chapters that follow review selected topics in the law of succession from a variety of perspectives: national, historical and comparative. The jurisdictions most prominently featured are the mixed jurisdictions of Scotland and South Africa, and in that sense the book can be regarded as an extension into the law of succession of work which has previously been

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carried out in the fields of property and obligations: see Southern Cross: Civil Law and Common Law in South Africa (eds R Zimmermann and D Visser, 1996); A History of Private Law in Scotland (eds K Reid and R Zimmermann, 2000), and Mixed Legal Systems in Comparative Perspective: Property and Obligations in Scotland and South Africa (eds R Zimmermann, D Visser and K Reid, 2004). But the book is by no means confined to Scotland and South Africa. One chapter, for example, considers the rules in Roman law on freedom of testation and compulsory heirship. Another is devoted to the country which has most recently re-written its law of succession: the Netherlands. And throughout the book there are frequent comparative references to the law of other countries. Much important work is waiting to be done in the law of succession. The present book is a contribution to that work as well as, it is hoped, a stimulus to further writing and research. Kenneth Reid, Edinburgh Marius de Waal, Stellenbosch Reinhard Zimmermann, Hamburg March 2007

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List of Contributors

alan r barr is Director of the Legal Practice Unit in the University of Edinburgh and a practising solicitor. alexandra braun is a Junior Research Fellow of St John’s College, Oxford. james chalmers is a Senior Lecturer in Law in the University of Edinburgh. marius j de waal is Professor of Private Law and Roman Law in the University of Stellenbosch. françois du toit is an Associate Professor of Law in the University of the Western Cape. george l gretton is Lord President Reid Professor of Law in the University of Edinburgh. dale hutchison is Professor of Private Law in the University of Cape Town. roderick r m paisley is Professor of Commercial Property Law in the University of Aberdeen. kenneth g c reid is Professor of Property Law in the University of Edinburgh. m c schoeman-malan is Professor of Private Law in the University of Pretoria. w david h sellar is an Honorary Fellow in Law in the University of Edinburgh. j c sonnekus is Professor of Private Law in the University of Johannesburg. sjef van erp is Professor of Civil Law and European Private Law in the University of Maastricht. reinhard zimmermann is Director of the Max Planck Institute for Comparative and International Private Law, Hamburg.

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List of Abbreviations

Information about cases and statutes in Scotland and South Africa, including law reports, is given in Reinhard Zimmermann, Daniel Visser and Kenneth Reid (eds), Mixed Legal Systems in Comparative Perspective: Property and Obligations in Scotland and South Africa (2004) lxxiii ff. PART I: BOOKS Bankton, Inst Andrew McDouall, Lord Bankton, An Institute of the Laws of Scotland in Civil Rights (1751–1753), reprinted by the Stair Society, vols 41–43 (1993–1995) Bell, Comm George Joseph Bell, Commentaries on the Law of Scotland and the Principles of Mercantile Jurisprudence, 7th edn, by J McLaren (1870; reprinted 1990) Bell, Prin George Joseph Bell, Principles of the Law of Scotland, 10th edn, by W Guthrie (1899, reprinted 1989) Corbett et al, Succession M M Corbett, G Hofmeyr and E Kahn, The Law of Succession in South Africa, 2nd edn (2001) Craig, Jus Feudale Thomas Craig of Riccarton, Jus Feudale, 3rd edn, by J Baillie (1732); transl Lord Clyde (1934) De Waal & Schoeman-Malan, Succession M J de Waal and M C Schoeman-Malan, Introduction to the Law of Succession, 3rd edn (2003)

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list of abbreviations

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Erskine, Inst John Erskine of Carnock, An Institute of the Law of Scotland, 8th edn, by J B Nicholson (1871, reprinted 1989) Grotius Hugo de Groot, Inleidinge tot de Hollandsche Rechts-geleerdheid (eds F Dovring, H F W D Fischer, E M Meijers), 2nd edn (1965) Hume, Lectures Baron David Hume, Lectures 1786–1822 (ed G C H Paton), Stair Society vols 5, 13, 15–19 (1939–1958) Macdonald, Succession D R Macdonald, Succession, 3rd edn (2001) McLaren, Wills & Succession J McLaren, The Law of Wills and Succession as administered in Scotland, 3rd edn (1894), with a supplementary volume by D Oswald Dykes (1934) Parry & Clark, Succession Parry and Clark, The Law of Succession, 15th edn, by R Kerridge assisted by A H R Brierley (2002) Reid & Zimmermann, History K Reid and R Zimmermann (eds), A History of Private Law in Scotland vols 1 (Introduction and Property) and 2 (Obligations) (2000) Scottish Law Commission, Succession Scottish Law Commission, Report on Succession (Scot Law Com No 124, 1990) South African Law Commission, Succession South African Law Commission, Review of the Law of Succession (Report 22, 1991) Stair James Dalrymple, 1st Viscount Stair, Institutions of the Law of Scotland, 6th edn, by D M Walker (1981) Voet Johannes Voet, Commentarius ad Pandectas (Hagae-Comitum, 1707) Wilson & Duncan, Trusts W A Wilson and A G M Duncan, Trusts, Trustees and Executors, 2nd edn (1995) Zimmermann, Visser & Reid, Mixed Legal Systems R Zimmermann, D Visser and K Reid (eds), Mixed Legal Systems in Comparative Perspective: Property and Obligations in Scotland and South Africa (2004)

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PART II: OTHER ABBREVIATIONS A A ABGB AC ACJ AD Add Ad & El AJ AJA AJCL AJP All ER All SA App Cas APS ASP Bell App BGB Bpk BS Buch Buch AC BW C c(c) C CA CC Ch Ch D CJ CLJ CLR Co CPD

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Appellate Division Atlantic Reporter Allgemeines Bürgerliches Gesetzbuch (Austrian Civil Code) UK Law Reports, Appeal Cases Acting Chief Justice South African Law Reports, Appellate Division Addams’ Reports (England and Wales) Adolphus & Ellis’s Reports (England and Wales) Acting Judge Acting Judge of Appeal American Journal of Comparative Law Acting Judge President All England Reports All South African Law Reports UK Law Reports, Appeal Cases, House of Lords Act of the Parliament of Scotland (until 1707) Act of the Scottish Parliament (from 1999) S S Bell’s Scotch Appeals, House of Lords Bürgerliches Gesetzbuch (German Civil Code) beperk (= limited) Brown’s Supplement, Court of Session reports Buchanan’s Reports, Cape Supreme Court Buchanan’s Appeal Cases, Cape Appeal Court Burgerlijk Wetboek (Civil Code of the Netherlands) Cape Provincial Division chapter(s) (legislation) Codex Iustiniani Court of Appeal Constitutional Court, South Africa English Law Reports, Chancery Division English Law Reports, Chancery Division Chief Justice Cambridge Law Journal Commonwealth Law Reports (Australia) Company Law Reports, Common Pleas Division; South African Law Reports, Cape Provincial Division

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list of abbreviations

CSIH CSOH D D (HL) Dick DP E EDC EdinLR EDL EDLD Edms EHRR ER EWCA EWHC Ex Ex D F F (HL) FC Foord Gai Inst GWD Harvard LR HC HL HLC HR Hume ICLQ Inc J JA JLSS JP JR J Inst

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Court of Session Inner House Court of Session Outer House Justinian’s Digest; Dunlop’s Session Cases (Scotland) House of Lords Cases in Dunlop’s Session Cases Dickens’ Reports (England and Wales) Discussion Paper Eastern Cape Local Division Eastern District Court Reports, Cape of Good Hope Edinburgh Law Review Eastern District Local Division Reports, Cape of Good Hope Eastern District Local Division eiendoms (= proprietary) European Human Rights Reports English Reports Court of Appeal, Civil Division (England and Wales) High Court (England and Wales) English Law Reports, Exchequer English Law Reports, Exchequer Division Fraser’s Session Cases (Scotland) House of Lords Cases in Fraser’s Session Cases Faculty Collection, Court of Session Foord’s Reports, Cape Supreme Court Gaius’s Institutes Green’s Weekly Digest (Scotland) Harvard Law Review House of Commons House of Lords Clark’s House of Lords Cases Hoge Raad (Supreme Court of the Netherlands) Hume’s Decisions, Court of Session International and Comparative Law Quarterly Incorporated Judge Judge of Appeal Journal of the Law Society of Scotland Judge President Juridical Review Justinian’s Institutes

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KB LA La LR Law Com LC LCJ LJ LJC LJCP LJEx LQR LR CP LR QB LT M Macq McGill LJ Menz MichLRev MLR Mo Mor MR N NC NE NJ NJW NLR NO NPD NZLR O OAG OH OLG OJ

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English Law Reports, King’s Bench Division Lord Advocate Louisiana Law Review Law Commission (England and Wales) Lord Chancellor Lord Chief Justice Lord Justice Lord Justice Clerk Law Journal Reports, New Series, Common Pleas (England and Wales) Law Journal Reports, Exchequer (England and Wales) Law Quarterly Review English Law Reports, Common Pleas English Law Reports, Queen’s Bench Law Times Reports Macpherson’s Session Cases (Scotland) Macqueen’s House of Lords Reports (Scotland) McGill Law Journal Menzies Reports, Cape Supreme Court Michigan Law Review Modern Law Review Missouri Reports Morison’s Dictionary of Decisions, Court of Session Master of the Rolls Natal Provincial Division Northern Cape Division North Eastern Reporter (USA) Nederlandse Jurisprudentie Neue Juristische Wochenschrift Natal Law Reports nomine officii South African Law Reports, Natal Provincial Division New Zealand Law Reports Orange Free State Provincial Division Oberappellationsgericht (Regional Supreme Court of Appeal, Germany, 19th century) Outer House, Court of Session Oberlandesgericht (Regional Appeal Court, Germany) Official Journal of the European Communities

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list of abbreviations

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OPD

South African Law Reports, Orange Free State Provincial Division Pa Pennsylvania State Reports (USA) plc public limited company pr principium Pty Proprietary Pvt Private (Company) QBD Queen’s Bench Division R Rettie’s Session Cases (Scotland) R (HL) House of Lords cases in Rettie’s Session Cases Rob Robinson’s Scotch Appeal Cases S Shaw’s Session Cases (NE indicates New Edition) (Scotland) s section SA South African Law Reports SALJ South African Law Journal SALR Butterworth’s South African Law Review SAR Reports of the High Court of the South African Republic SC Reports of the Cape Supreme Court SC Session Cases (Scotland) SC (HL) House of Lords cases in Session Cases SCA Supreme Court of Appeal (South Africa) SCLR Scottish Civil Law Reports Scot Law Com Scottish Law Commission SE/SEC/SECLD South Eastern Cape Local Division Searle Searle’s Reports, Cape Supreme Court Sh Ct Rep Sheriff Court Reports (Scotland) SI Statutory Instrument SLPQ Scottish Law & Practice Quarterly SLR Scottish Law Reporter SLT Scots Law Times SLT (News) News Section in Scots Law Times SLT (Notes) Notes of Recent Decisions in Scots Law Times SLT (Sh Ct) Sheriff Court Reports in Scots Law Times So Southern Reporter (USA) SR High Court of Southern Rhodesia SSI Scottish Statutory Instrument Stellenbosch LR Stellenbosch Law Review sv sub voce

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SW SWA T TH THRHR Tk TPD TS TSAR Tulane LR UKHL US Va Ves Ves Jun W W& S WisLRev WLD WLR WPNR Yale LJ ZEuP

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South Western Reporter (USA) South African Law Reports, South West Africa Division Transvaal Provincial Division Reports of the Witwatersrand High Court Tydskrif vir Hedendaagse Romeins-Hollandse Reg South African Law Reports, Transkei High Court South African Law Reports, Transvaal Provincial Division Reports of the Transvaal Supreme Court Tydskrif vir die Suid-Afrikaanse Reg Tulane Law Review United Kingdom, House of Lords United States Supreme Court Reports Virginia State Reports (USA) Vesey’s Reports (England and Wales) Vesey Junior’s Reports (England and Wales) Witwatersrand Local Division Wilson and Shaw’s House of Lords Cases (Scotland) Wisconsin Law Review South African Law Reports, Witwatersrand Local Division Weekly Law Reports (England and Wales) Weekblad voor Privaatrecht Notariaat en Registratie Yale Law Journal Zeitschrift für Europäisches Privatrecht

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Table of Cases

A v B [2003] QB 195 104 Adam’s Exx v Maxwell 1921 SC 418 58 Aird v Aird’s Exrs 1949 SLT (Notes) 3 123 Allan v Callender (1762) Mor 8,208 137 Allan v Thomson’s Trs (1893) 20 R 733 188 Allan’s Testamentary Trs v Allan’s Marriage Contract Trs (1907) 15 SLT 73 126 Allen v McCombie’s Trs 1909 SC 710 117 Anderson v Miller (1799) Hume 282 137 Annand and Colhoun v Chessels (1774) Mor 5,844 122 Anstruther v Anstruther (1836) 14 S 272 54, 56 Argo v Pauline (1905) 12 SLT 784, (1905) 13 SLT 480 122 Arkley v Paterson (1893) 1 SLT 336 127 Aronson v Estate Hart 1950 (1) SA 539 109, 111, 113 Baiky v Baiky (1693) 4 BS 68 139 Balfour’s Trs v Johnston 1936 SC 137 112, 131, 139 Ballantyne’s Trs v Ballantyne 1952 SC 458 140 Banks v Goodfellow (1869-70) LR 5 QB 549 86 Bannerman v Macqueen (1896) 4 SLT 71 130 Barker v Watson’s Trs 1919 SC 109 123, 139 Battan Singh v Amirchand 1948 AC 161 87 Beaton’s JF v Beaton 1950 SLT (Notes) 63 132 Bedwells and Yates v Tod 2 Dec 1819 FC 125 Beguman v Saroo 1964 Pakistan Legal Decisions (WP) Lahore 451 140 Bekker v Naude 2002 (1) SA 264 (W), affd 2003 (5) SA 173 (SCA) 154 Bell’s Trs v Bell 1916 2 SLT 250 131 Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC) 8 Birch v Curtis [2002] EWHC 1158, [2002] Fam Law 815 220

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Blair v Blair (1849) 12D 97 179 Blathwayt v Baron Cawley [1976] AC 397 104, 111 Bogie’s Trs v Christie (1882) 9 R 453 190 Booths v Black (1831) 9 S 406 122 Borman en De Vos NNO en ‘n Ander v Potgietersrusse Tabakkorporasie Bpk en ‘n Ander 1976 (3) SA 488 (A) 226, 227, 228, 230, 231, 232, 233, 236 Braun v Blann and Botha 1984 (2) SA 850 (A) 76, 160 Brits v Brits’s Executors (1868) 1 Buch 312 223 Brogan v Rennie 1991 GWD 31-1885 93 Brown v Coventry (1792) Mor 14,863 170 Brown’s Trs (1882) 10 R 441 188 Bruce v Bruce’s Trs (1898) 5 SLT 359 130 Bruce’s Trs v Hamilton (1858) 20 D 473 130 Burgers v Burgers’ Exrs 1911 CPD 936 224 Bydawell v Chapman 1953 (3) SA 514 (A) 69 Cairney v Macgregor’s Trs 1916 SLT 357 Calder v Millars (1890) 28 SLR 231 Cameron v MacIntyre’s Exr 2006 SC 283 Campbell v Campbell (1740) Mor 14,855 Campbell v Levingstoun Carelse v Estate De Vries (1906) 23 SC 532 Champaign County Bank & Trust Co v Jutkins 29 Ill 2d 253, 193 NE 2d 779 Ill (1963) Chaplin’s Trs v Hoile (1890) 18 R 27 Christie v Christie (1681) Mor 8,197, 14,849 Christie v Paterson (1822) 1 S 498 Christie’s Trs Ptrs (1894) 1 SLT 550 Church Property Trustees v Ebbeck (1960) 104 CLR 394 Clavering v Ellison (1859) 7 HLC 707, 11 ER 282 Clayton v Ramsden [1943] AC 320 Clinton v Trefusis (1869) 8 M 370 Cochrane’s Exr v Cochrane 1947 SC 134 Colville’s JF v Nicoll 1914 SC 62 Commonwealth v Stauffer 10 Pa 350 (1849) Corrance’s Trustees v Glen (1903) 5 F 777 Costain and Partners v Godden NO 1960 (4) SA 456 (SR) Couper’s JF v Valentine 1976 SLT 83

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243 119 121 170 164 71, 72 124 133 169 190 126 109 110 110, 111 56 174 58 108 222 228, 230 123

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Crampton’s JF v Barnardo’s Homes 1917 SC 713 Creditors of the Earl of Annandale v Viscount Stormont (1662) Mor 13,994 Croll’s Trustees v Alexander (1895) 22 R 677 Cross Ptr 1987 SLT 384 Cuninghame v Cuninghame (1770) Mor 14,875 Cuningham v Montgomerie (1879) 6 R 1333 Curdy v Boyd (1775) Mor 15, 946 Cuthbertson v Thomson and Young (1781) Mor 4,279

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178 166, 167 222 136, 139 56 117 243 183

D & D of Buccleugh v M of Tweeddale (1677) Mor 2,369 65 D’Angelo v Bona 1976 (1) SA 463 (O) 229, 230 Daniels v Campbell (2004) 7 BCLR 735 (CC) 73 De Kock v Estate De Kock 1922 CPD 110 224 De Wayer v SPCA Johannesburg 1963 (1) SA 71 (T) 106 Denyssen v Mostert [1872] 8 Moore NS 502, 17 ER 400, (1873) 3 Buch 31 223 Devlin’s Trs v Breen 1945 SC (HL) 27 189 Dishington v Hamilton (1558) Mor 8,913 135 Dixon v Dixon (1836) 14 S 938, (1841) 2 Rob 1 181, 183, 191 Dougall’s Trs v Dougall (1789) Mor 15,949 221 Douglas v Douglas’s Trs (1792) Mor 2,985 106 D’Oyly-John v Lousada 1957 (1) SA 368 (N) 224 Drummond’s JF v HM Advocate 1944 SC 298 65 Du Plessis NO v Strauss 1988 (2) SA 105 (A) 187 Dufour v Pereira (1769) 1 Dick 419, 21 ER 332 215, 217, 219 Duguid v Caddell’s Trs (1831) 9 S 844 243 Dunbar v Scott’s Trs (1872) 10 M 982 135 Dundee General Hospitals v Bell’s Trs 1952 SC (HL) 78 122, 123 Earl of Rothes v Lord Melville (1677) BS 168 Erasmus v Havenga 1979 (3) SA 1253 (T) Estate Cato v Estate Cato 1915 AD 290 Estate Claassen v Estate Claassen 1913 CPD 269 Estate Coaton v The Master 1915 AD 527 Estate Kemp v McDonald’s Trustee 1915 AD 491 Estate Smith v Smith 1940 CPD 625 Estate Warren v Hulett and Others 1949 (3) SA 229 (N) Estate Watkins-Pitchford v CIR 1955 (2) SA 437 (A)

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165 229, 230 187 224 224 76 224 189 76, 85

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Ex parte Calderwood NO: In re Estate Wixley 1981 (3) SA 727 (Z) Ex parte Gitelson 1949 (2) SA 881 (O) Ex parte Higgs NO: in re Estate Rangasami 1969 (1) SA 56 (D) Ex parte Jackson NO 1941 TPD 222 Ex parte Steyl 1951 (1) SA 275 (O) Executors of Cerfonteyn v O’Haire 1873 Buch 47 Falconar Stewart v Wilkie (1892) 19 R 630 First National Bank of SA Ltd v Lynn NO and Others 1996 (2) SA 339 (A) Fleming’s Tr v Fleming 2000 SC 206 Fogo’s JF v Fogo’s Trs 1929 SC 546 Forster v Campbell (1866) 2 SLR 98 Fowlis v Gilmours (1672) Mor 2,965, 2 Brown’s Supp 160 Fraser v Rose (1849) 11 D 1466 Fulton v Fulton (1864) 2 M 893

230, 234 107 107 224 238 89 132, 134 233 168 117 131 107 112, 132 117

Galliers v Rycroft [1901] AC 130 184, 185, 186, 187, 189 Garvie’s Trs v Still 1972 SLT 29 140 Gay Association HR 7 June 1991, 1992 NJ 262 200 Gibson v MacBain (1786) Mor 620 122 Gilchrist, Ptr 1990 SLT 494 139 Gillespie v Mercer (1876) 3 R 561 188 Glazer v Glazer NO 1963 (4) SA 694 46, 71, 72 Globe Insurance Co v McKenzie (1850) 7 Bell’s App 296 117 Gordon v Gordon 124 NE 2d 228 (Mass 1955), 349 US 947 (1955) 103 Gore-Browne-Henderson’s Trs v Grenfell 1968 SC 73 116 Gow’s Trs v Gow 1912 2 SLT 256 135 Grant v Brooke (1882) 10 R 92 190 Grant v Cowe (1887) 15 R 81 118 Grant v Grant (1679) Mor 3,596 243 Grant’s Trs v Grant (1898) 25 R 929 112, 132 Gray v Perpetual Trustee Co Ltd [1928] AC 391 220 Green v Harrison, 7 Dec 1983 CSOH 116 Greenberg v Estate Greenberg 1955 (3) SA 361 (A) 76, 77 Grusd NO v Grusd 1946 AD 465 111, 112 Hall v Hall (1891) 18 R 690

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Hamilton v McCunn’s Trs, 10 March 1900 CSOH 131 Hanlon’s Exr v Baird 1945 SLT 304 222 Harlow v Becker NO 1998 (4) SA 639 (D) 90 Harwood v Baker (1840) 3 Moo PC 282 87 Hays v Brown (1883) 10 R 460 138 Healey v Brown [2002] EWHC 1405 220, 221 Heath and Another v Heath, TPD case no 11087/01 232 Henderson’s JF v Henderson 1930 SLT 743 123 Henderson v Stuart (1825) 4 S 306 126 Hennessay v Littlejohn Ch, 11 June 2001 220 Henwick v The Master 1997 (2) SA 326 (C) 154 Heymans v Estate Heymans and the Master 1939 OPD 170 209 Hobson v Blackburn (1822) 1 Add 274, 162 ER 96 219 Hodge v Fraser (1740) Mor 3,119 64 Hodson v Lloyd (1789) 2 Bro CC 534 (29 ER 293) 150 Hofmeyr, Neethling’s Curator v De Wet (1868) 1 Buch 317 223 Horne and Kynoch v Whyte 25 Nov 2003 CSOH, [2005] CSOH 115 122 Hunter’s Exrs Ptrs 1992 SLT 1141 125, 136 Hunter v Weston (1882) 9 R 492 132 In re D(J) 1982 Ch 237 In re Devlin’s Trust Estate 130 A. 238 (Pa 1925) In re Estate Reynolds 1956 (1) SA 1 (N) In re Goldie-Taubman (1961-1971) Manx Law Reports 244 In re Goodchild decd [1997] 1 WLR 1216 In re Laning’s Estate 339 A.2d 520 (Pa 1975) In re Visser 1948 (3) SA 1129 (C) Innes v Innes (1670) Mor 4,272 Innes’s Trs v Innes 1963 SC 339 Jackson Ptr 1989 GWD 22-947 Jamieson v Clark (1872) 10 M 399 Johnston’s Exr v Dobie 1907 SC 31 Joubert v Ruddock 1968 (1) SA 95 (E). Jubelius v Griesel NO en Andere 1988 (2) SA 610 (C) Keeve v Keeve NO 1952 (1) SA 619 (O) Ker v Wauchope [1819] 4 ER 1 Kerr v Martin (1840) 2 D 752 Kidd v Kidds (1863) 2 M 227

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96 109 149 139 220 110 147 182 108, 134, 138 139 117 115 224 230

229, 230 122, 130 63 106, 107, 108, 133

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Kinnear v Kinnear (1877) 4 R 705 Kirktons v Hunthill (1665) Mor 12,531 Kirsten v Bailey 1976 (4) SA 108 (C) Kleyn v Estate Kleyn 1915 AD 527 Knost v Knost 129 SW 665 Knox’s Exr v Knox 1941 SC 532

164 135 86, 88, 89 224 108 190

Ladies’ Christian Home and Others v SA Association 1915 CPD 467 238 Laing v Laing (1895) 22 R 575 129 Letsekga v The Master 1995 (4) SA 731 (W) 154 Lord Walpole v Lord Orford (1797) 3 Ves Jun 402, 30 ER 1076 215, 219 Ludwig v Ludwig’s Exr (1848) 2 Menz 449 148 McAlpine v McAlpine NO and Another 1997 (1) 226, 227, 228, 230, 231, SA 736 (A) 232, 233, 234, 235, 237, 238 MacDonald v The Master 2002 (5) SA 64 (O) 154 Macdonald, Fraser & Co Ltd v Cairns’ Exr 1932 SC 699 117 Macdonald’s Trs Ptrs (1899) 7 SLT 445 139 McGregor’s Trs v Gray 1969 SLT 355 215 MacIntosh v Wood (1872) 10 M 933 124 MacKay v Campbell (1835) 13 S 246 168 McKee v Archibold [1933] NI 47 123 McKenzie v Holte’s Legatee (1781) Mor 6,602 190 Mackenzie’s Marriage Contract Trs v Beveridge’s Trs 1908 SC 1185 118 Mackrath v Alexander (1712) Mor 2,975 106 McMillan v Kerr’s Trs (1902) 18 Sh Ct Rep 132 131 MacPherson v MacPherson’s CB (1894) 21 R 386 134 Maddox v Maddox’s Administrator 52 Va 804 (1854) 102 Magistrates of Montrose v Robertson (1738) Mor 6, 398 180, 181, 182, 183 Marais v The Master 1984 (4) SA 288 (D). 154 Marckx v Belgium (1979-80) 2 EHRR 330 104 Maxwell v Wylie (1837) 15 S 1005 122 Mellis’s Trs v Legge’s Exx (1898) 25 R 954 126 Metterwoon Vastgoed v Van Ommen HR 15 November 1996, 1997 NJ 508 200 Meyer v Rudolph’s Executors 1918 AD 70 237 Meyer’s Executors v Meyer’s Executors 1927 TPD 331 224 Miller Ptr 1977 SLT (Sh Ct) 67 122

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Miller v Milne’s Trs (1859) 21 D 377 Miller’s Trs v McLellan 1911 1 SLT 444 Miller’s Trs v Miller (1890) 18 R 301 Milligan’s JF v Milligan 1910 SC 58 Mills v Estate Van Blerk 1914 CPD 857 Milne v Milne (1826) 4 S 679 Mitchell v Wright (1729) Mor 8,082 Mntaka v Mntaka and Another 1964 (4) SA 314 (N) Moncreiff v Skene (1825) 1 W & S 672 Morris v Riddick (1867) 5 M 1036 Morton v Young 11 Feb 1813 FC Mowbray v Scougall (1834) 12 S 910 Murison v Dick (1854) 16 D 529 Murray v Grant (1662) M 10,322 Murray’s Exrs v Murray (1868) 5 SLR 209

239, 243, 244 131, 139 132 147 224 115 243 149 130 65, 242 118, 137 190 243 182 130, 139

Nasmith v Jaffray (1662) Mor 2,070, 5,483 Naysmith v Boyes (1899) 1 F (HL) 79 Nisbet v Scot (1707) Mor 3,809

134 139 116

Oliphant v Oliphant (1674) Mor 3,429 Ommanney v Bingham (1796) 3 Pat 448 Oosthuysen v Oosthuysen (1868) 1 Buch 51

120 106 223

Paterson v Paterson (1893) 20 R 484 Paterson’s Trs v Paterson (1870) 8 M 449 Perry v Executors Estate Oats 1941 TPD 91 Pirie’s Trs v Pirie 1962 SC 43 Powrie v Dykes (1667) Mor 11,648

221, 240, 241, 243 127 224 123 182

Ramsay v Anderson (1836) 14 S 570 Re Allen [1953] Ch 810 Re Boddington (1884) 22 ChD 685; N v M (1885) 1 TLR 523 Re Bowlen Estate [2001] 98 Alberta Law Reports 381 Re Callaway [1956] 2 All ER 451 Re Cuming (1945) 72 CLR 86 Re Dale decd, Proctor v Dale [1994] Ch 31 Re Davey [1981] 1 WLR 164 Re Heys [1914] P 192

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122 110 151 125 125 109 220 89, 96 220

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Re K, decd [1985] 2 WLR 262 139 Re McKenna [1947] IR 277 111 Re Oldham, Hadwen v Myles [1925] Ch 75 220 Re Samuel [1942] Ch 1 108 Re Sandbrook [1912] 2 Ch 471 112 Re Selby’s Will Trusts [1966] 1 WLR 43 111 Re Sinclair [1985] Ch 446 151 Re Stott [1980] All ER 259 89 Re Tepper’s Will Trusts [1987] Ch 358 111 Re Tuck’s Settlement Trusts [1978] Ch 49 111 Reek NO v Registrateur van Aktes, Transvaal 1969 (1) SA 589 (T) 188 Reid v Coates 5 March 1813 FC 132 Renchen v Renchen 1946 NPD 471 224 Rigg’s Exx (1905) 13 SLT 144 132, 135 Ritchie v Ritchie’s Trs (1874) 1 R 987 123 Robertson v Hay-Boyd 1928 SC (HL) 8 168, 178 Robertson v Moderator of the General Assembly of the Church of Scotland (1833) 11 S 297 123 Robertson’s Trs v White (1903) 11 SLT 566 122 Rodger’s Trs v Allfrey 1910 SC 1015 126, 127 Scott v Price (1837) 15 S 916 Scrimzeour v Wedderburn (1675) M 6,357 Secretary SA Association v Mostert (1869) 1 Buch 231 Senekal v Meyer 1975 (3) SA 372 (T) Seton v Pidmedden (1717) Mor 4,425 Sharp v Thomson 1995 SC 455 Shearer v Shearer’s Executors 1911 CPD 813 Simpson v Roberts 1931 SC 259 Simson’s Trs v Brown (1890) 17 R 581 Sinclair’s Trs v Sinclair 1942 SC 362 Sir Hugh Vere Huntly Duff Munro-Lucas-Tooth, Baronet 1965 SLT (Lyon Ct) 2 Smart v Smart 1926 SC 392 Smith Ptr 1979 SLT (Sh Ct) 35 Smith’s Trs v Grant (1862) 24 D 1142 Smith’s Trs v Smith’s Trs (1908) 46 SLR 19 Smollett of Bonhill Ptr 1959 SLT (Lyon Ct) 3 Soutar v MacGrugar 22 Jan 1801 FC 483

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133 126 212, 223 154 169 118 144, 149 122 132 190 132 115 115 116 126 132 128

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Spalding v Spalding’s Curator ad Litem 1963 SC 141 Spies NO v Smith 1957 (1) SA 539 (A) Stevenson’s Trs v Stevenson 1932 SC 657 Stiller and Dyzenhaus v O’Brien NO 1947 2 SA 1094 (W) Stone v Hoskins [1905] P 194 Stuart v Stuart 1942 SC 510 Stuart-Gordon v Stuart-Gordon (1899) 1 F 1005 Sturrock v Rankin’s Trs (1875) 2 R 850

182 89 147 85 219 65 147 106, 107

Tataryn v Tataryn Estate 1994 2 SCR 807 Taylor & Ferguson Ltd v Glass’s Trs 1912 SC 165 The King v Lindsay 18 January 1564 The Queen v Ayson 28 February 1563 The Receiver of Revenue, Pretoria v Hancke 1915 AD 64 Thellusson v Woodford (1805) 11 Ves 112, 32 ER 1030 Thirion v Die Meester 2001 (4) SA 1078 (T) Thomas v Clover NO 2002 (3) SA 85 (N) Thomsons v Creditors of Alice Thin (1675) Mor 3,593 Towse’s Tr v Towse 1924 SLT 465 Trappes v Meredith (1871) 10 M 38 Traquair v Blushiels (1626) Mor 3,591 Tregea v Godart 1939 AD 16 Trotter v Trotter (1842) 5 D 224 Twentyman v Hewitt (1833) 1 Menz 156

83 117 164 164 223 101 82 89 243 123 122 243 86 245 75

Union Government (Minister of Finance) v Leask’s Exrs 1918 AD 447 224 United Free Church of Scotland v Black 1909 SC 25 222 Urquhart’s Exrs v Abbott (1899) 1 F 1149 135 Van Aardt v Van Aardt 2007 (1) SA 53 (E) Varkevisser v Estate Varkevisser 1959 (4) SA 196 (SR) Vaughan’s Executrix v The Master 1919 TPD 363 Veitch’s Exr v Veitch 1946 SLT (Notes) 17, 1947 SLT 17 Veitch’s Trs v Rutherford 1914 SC 182 Volks v Robinson (2005) 5 BCLR 446 (CC) Vorster v Steyn NO 1981 (2) SA 831 (O) Waddell v Waddell (1738) Mor 6,366 Walker v Walkers Trs 1917 SC 46

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234 229, 230 224 134 132 73 122 126 54

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Wallace v Wallace (1807) Mor App “Clause” No 6 Watson v Giffen (1884) 11 R 644 Wayling v Jones [1993] 69 P&CR 170 Weber’s Trs v Riemer 1947 SLT 295 Webster v The Master 1996 (1) SA 22 (D) Wemyss v Wemyss’s Trs 1921 SC 30 Williams v Cowden 13 Mo 211 Williams v Williams (1882) 20 Ch D 659 Wintle v Nye [1959] 1 WLR 284 Young’s Trs v Incorporated Trades of Perth (1893) 20 R 778

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183, 190 178 94 128 154 111, 131 107 126 89 133

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1 A Comparative Overview* Marius J de Waal A. B. (1) (2) (3) (4) C. (1) (2) (3) D. (1) (2) (3) E. (1) (2) (3) (4) F. (1) (2) (3) G.

INTRODUCTION COMPARATIVE RESEARCH AND HARMONISATION The scope for harmonisation: the traditional view The traditional view challenged Social factors Economic factors PRIVATE INTERNATIONAL LAW AND COMPARATIVE RESEARCH Typical problems Public international law instruments The role of comparative scholarship FREEDOM OF TESTATION AND ITS LIMITATIONS The principle of freedom of testation The identification of patterns: the role of comparative research Other focal areas THE CONTENTS OF WILLS: THE EXAMPLE OF THE TRUST Introduction A unique institution of the Common Law? The trust in Civilian and mixed jurisdictions Trust-like institutions in Continental Europe THE TRANSFER OF THE ESTATE UPON DEATH Introduction Categorisation The role of the executor or representative CONCLUDING REMARKS

* This is a slightly abbreviated and adapted version of M Reimann and R Zimmermann (eds), The Oxford Handbook of Comparative Law (2006) ch 33. I wish to express my gratitude to the editors and publisher of that work for permission to publish the chapter in the present format.

1

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A. INTRODUCTION This book reviews selected topics in the law of succession from a comparative and, in some instances, a historical perspective. It seems well to begin, however, with an overview of some of the comparative work that has already been carried out. Not only will this provide an idea of the present state of comparative work in the law of succession, but it will also serve as a context within which the other chapters in the book can be situated. However, one cannot embark upon such an exercise without first asking a more fundamental question: what is the true nature of the law of succession?1 The primary function of the law of succession is to identify both the persons entitled to succeed to the deceased and also the property they are to receive. From the perspective of the testator (if there is a valid will) it guarantees, as far as the law allows, that the property reaches the destination determined by him. From the perspective of the heirs it guarantees that the property is transferred to them in a lawful and orderly fashion. Consequently, the law of succession facilitates continuity, it prevents self-help and it ensures a smooth transfer of wealth upon death. In the course of this chapter it will become clear that the law of succession needs to be analysed within a broader economic and social context.2 This is because it fulfils both an economic and a social function. Its economic function – to regulate the transfer of wealth upon a person’s death – is supported by the principle of freedom of testation that holds that a person may, within certain limits, decide on the distribution of his property upon death. The social function of the law of succession is associated particularly with the maintenance and protection of the family as a social unit. As will be illustrated later,3 this explains why the law of succession is influenced by social trends affecting the family. A trite, though fundamental, feature of the law of succession is its subdivision into testate and intestate succession. Testate succession deals with the situation where a person has chosen to dispose of his property by will. More particularly, it deals with the execution, amendment and revocation of wills as well as with their content and interpretation. Intestate succession, on the other hand, deals with the devolution of the property of a person who has died without leaving a valid will, or who has failed to dispose of all his property in a valid will. In this 1 See M J de Waal, “The law of succession and the Bill of Rights: private succession and freedom of testation in the light of the Constitution”, in Butterworths Bill of Rights Compendium (looseleaf) para 3G3 with further references. 2 See especially B. below. 3 See B.(3) below.

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chapter the person whose property is the subject of distribution upon death will normally be referred to as the “testator” in the context of the law of testate succession. In all other instances the term “deceased” will be used. It has often been stated that the law of succession is one of the most indigenous branches of the law and that it does not lend itself easily to comparative research. The law of succession is, as it were, a part of a country’s cultural goods – like its monuments and museums.4 This view has at least two general implications for comparative research. The first implication (an issue that will be revisited later)5 is that comparison with a view to possible harmonisation may be regarded as a futile exercise. This, in turn, is founded on two premises. First, legal comparison cannot be successful because the law is too much embedded in local culture and customs. And, secondly, harmonisation is not desirable because it would lead to something akin to a loss of cultural goods. The second implication is that comparative work is likely to consist of “micro”-comparison. For example, formalities for the execution of valid wills in different systems can be compared. The result is the identification of a striking variety of possibilities. Even in the European context, comparative research has distinguished four broad types of will: (1) the holographic will (a will that must be written and signed personally by the testator); (2) the witnessed will; (3) the closed and international will; and (4) the notarial or public will.6 Moreover, the specific requirements within each type may vary greatly. In most European countries, for example, the notarial or public will is drafted by a notary and must be signed by the testator. 7 In Austria, however, a notarial will can also be made by a judge. Belgian and French law require that the testator dictates the will to the notary. In other countries, such as Germany and Austria, it is sufficient if the testator delivers the document to the notary with the confirmation that it is his will. This sort of exercise can be repeated with regard to, for example, capacity to make a will, amendment of wills, revocation of wills, condonation of formally defective wills, capacity to inherit, and so on. This type of comparison may be interesting; at the same time, however, its usefulness may be questioned. All of this relates to what has been called the “postmodernist” approach to legal comparison: that is, the search not for points of contact between 4 See W Pintens, “Grundgedanken und Perspektiven einer Europäisierung des Familien- und Erbrechts – Teil 1” 2003 Zeitschrift für das gesamte Familienrecht 329 at 331. 5 See B. below. 6 See, e.g., A Verbeke and Y-H Leleu, “Harmonisation of the law of succession in Europe”, in A Hartkamp et al (eds), Towards a European Civil Code, 4th edn (2004) 335 at 342. 7 Verbeke & Leleu (n 6) at 342.

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different legal systems and legal institutions, but for distinctions and differences between them.8 This approach may have its value, but it risks stagnation and isolation from the advantages of legal comparison and harmonisation.9 B. COMPARATIVE RESEARCH AND HARMONISATION (1) The scope for harmonisation: the traditional view The concept of harmonisation has been explained as the “wide variety of methods and techniques which attempt to realise, to a variable degree, an approximation of differing national legislations in a certain area of law”.10 Although the quest for harmonisation (or, more ambitiously, unification) is not uncontroversial, its obvious advantages cannot be doubted. Chief among these would be the fact that it makes international legal dealings easier and also less risky by promoting predictability and security.11 Further, in an era of globalisation and greater mobility of people the “hazards of applying private international law and foreign substantive law” would be reduced.12 Although the advantages or otherwise of harmonisation may be debatable, there seems to be general agreement as to what the starting point should be. In order to find an answer to the question of whether or not the harmonisation of a certain field of law is feasible, one must start from comparative legal research. Zweigert and Kötz have stated that preparatory studies in comparative law are “absolutely essential” here: “without them one cannot discover the points of agreement or disagreement in the different legal systems of the world, let alone decide which solution is the best”.13 And this research, it has been suggested, should be pursued according to the so-called “functionaltypological method”.14 This means that, on the one hand, the function of a legal rule or institution is examined and that it has to be investigated whether the rule properly fulfils this function; on the other hand, “typical solutions” to legal problems in different systems are to be identified.15 In general it would be true to say that in societies that are socially, economically, politically and culturally comparable it is likely that the social problems to be regulated and solved by legal rules are more or less similar.16 8 9 10 11 12 13 14 15 16

Pintens (n 4) at 331. See n 8 above. Verbeke & Leleu (n 6) 335. K Zweigert and H Kötz, Introduction to Comparative Law, 3rd edn, transl T Weir (1998) 25. See n 11 above. Zweigert & Kötz, Comparative Law 24-25. Verbeke & Leleu (n 6) 335. See n 14 above. Verbeke & Leleu (n 6) 336.

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It is therefore also more likely that there should be “typical solutions” to these problems. The social (and economic) problem to be addressed by the law of succession is, of course, the issue of how, when and to whom property must be transferred at a person’s death. However, as has been pointed out, there appears to be wide acceptance for the proposition that the law of succession is to a large extent influenced by local rules, customs, moral values and cultural conventions. According to this view a (more) harmonised or unified law of succession is therefore neither feasible nor desirable.17 (2) The traditional view challenged In the broader context of comparative studies on the law of succession this general proposition has been challenged on a number of different grounds. First, the basic assumptions underlying it have been questioned. One of these assumptions is that the law of succession is characterised by its “regionality”. This means that the legal relationships regulated by the law of succession are mostly localised. However, an author such as Dieter Leipold18 has argued convincingly that this is a gross oversimplification. He indicates that such relationships can be manifold and that they often reach across national borders. To mention only one common example (that will be expanded upon below in the discussion of private international law):19 the testator is a national of one country but dies in another, leaving movable and immovable property in a third country. Regarding the European law of succession in particular, Leipold also questions another assumption, namely that its shape is necessarily dictated by different cultural, social and religious considerations in different countries. In this connection he draws attention to the existence of a common legal tradition based on Roman law, canon law and the Roman-canon ius commune which has also manifested itself in the law of succession.20 The general proposition has furthermore been questioned on the basis of historical research. A fascinating piece of historical evidence regarding the possibilities of harmonisation in the law of succession is provided by the story of the creation of Book Five, on the law of succession, in the German Civil Code. In order to create a unified law of succession for the whole of Germany it was necessary to harmonise at least four different succession regimes 17 Verbeke & Leleu (n 6) 337. 18 D Leipold, “Europa und das Erbrecht”, in Europas universale rechtsordnungspolitische Aufgabe im Recht des dritten Jahrtausends: Festschrift für Alfred Söllner (2000) 647 at 649. 19 See C. below. 20 Leipold (n 18) at 650.

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prevailing in different parts of Germany at the time: the ius commune, Saxon Common Law, Prussian Allgemeines Landrecht and French law.21 Apart from these general regimes, there were more than 100 local laws applicable in certain parts of Germany. Despite the fact that it might at the outset have seemed to be a hopeless quest, unity was achieved even in the most sensitive areas such as the rules of intestate succession, forced succession and formalities for the execution of wills. More recently one can detect a momentum towards greater unity through common social and economic developments in different societies. And it is mainly through comparative research that these trends and their impact on the law of succession - predominantly in the spheres of intestate succession and forced succession - have been identified. In what follows these developments in the social and economic spheres will be highlighted. (3) Social factors22 Reference has already been made to the important interplay between the broad areas of the law of succession and family law.23 It is therefore not surprising that the social function of the law of succession is intimately linked with the family. The premise is that the family is an important social unit that needs to be protected and preserved. If a person dies, leaving a spouse and dependent children, the law attempts to ensure that the basic needs of the surviving family members will be provided for via the estate of the deceased. In intestate succession this is achieved by generally drawing the circle of potential heirs as small as possible and in testate succession by the numerous restrictions on the testator’s freedom of testation.24 Friedman25 refers to this as the “principle of forced succession”: The principle of forced succession we might call social. Practically speaking, forced succession means succession within the family – to the wife, children, or other dependants. Forced succession imposes upon the testator the obligation to care for members of his family before satisfying any other desires and needs. In a sense, it converts private property at death to family property.

The concept of “family” used thus far is the so-called “nuclear” family that consists of married parents with dependent children. However, once a 21 Leipold (n 18) at 655. 22 See, in general, M J de Waal, “The social and economic foundations of the law of succession” (1997) 8 Stellenbosch LR 162 at 163-166 with further references. 23 See A. above. 24 As to freedom of testation, see further D. below, and chapter 4. 25 L M Friedman, “The law of the living, the law of the dead: property, succession and society” (1966) 29 WisLRev 340 at 366.

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different or wider definition is accepted, the succession rules aimed at the protection of the family may become different. And this “redefinition” of the family is exactly what has been taking place due to social developments in many countries. These developments, and their influence on the law of succession, have been the focus of much of the more recent comparative research in the field. For the purposes of this chapter it will have to suffice that just some of these social developments are mentioned:26 (a) a movement towards the strengthening of the position of the surviving spouse at the expense of children and further relations; (b) the legal recognition of partnerships between persons (also of the same sex) who are not married; (c) the legal recognition of adoption of children by partners of the same sex; and (d) the general elimination of all discrimination against the extra-marital (illegitimate) child. The effects of these developments on the law of succession are fairly obvious. First, the strengthening of the position of the surviving spouse at the expense of children has led to a shift in emphasis from a “vertical law of succession” (succession between parents and children) to that of a “horizontal law of succession” (succession between spouses).27 Secondly, the legal recognition of partnerships between persons who are not married and the elimination of discrimination against the extra-marital child have an important impact on both the law of intestate succession and the system of forced succession. Most of these developments have been brought about by the fundamental consideration of equality before the law (in other words, the abolition of all forms of discrimination). In South Africa, for example, the black customary law of intestate succession has always been founded on the basic principles of primogeniture (favoured treatment of the first-born) and preference of male heirs. Due to its inherently discriminatory nature this whole system has now been declared unconstitutional and has (at least as an interim measure) 26 See, especially, S M Cretney, “Reform of intestacy: the best we can do?” (1995) 111 LQR 77 ff. De Waal (n 22) at 162; Pintens (n 4) at 329 ff; W Pintens, “Grundgedanken und Perspektiven einer Europäisierung des Familien- und Erbrechts – Teil 2” 2003 Zeitschrift für das gesamte Familienrecht 417 ff. As is evident from these references, important research in this area has been done in the European context. For some developments in American law, see P J Buser, “Domestic partner and non-marital claims against probate estates: Marvin theories put to a different use” (2004) 38 Family Law Quarterly 315 ff. 27 W Pintens, “Die Europäisierung des Erbrechts” (2001) 9 ZEuP 628 at 629; J C Sonnekus, “The new Dutch Code on Succession as evaluated through the eyes of a hybrid legal system” (2005) 13 ZEuP 71 at 76.

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been replaced with the “normal” regime of intestate succession as regulated by legislation.28 Another social factor that is relevant with regard to its effect on the law of succession is the steady increase in the rate of divorces. One issue is the difficult question whether a divorced spouse should be considered as a potential heir in terms of the law of intestate succession. Attention has been drawn to the “bewildering range of possibilities” that have to be examined if the law is to cater for a situation where a deceased’s surviving spouse is not the only person to whom he or she had been married.29 A further issue concerns the impact of a divorce, or the annulment of a marriage, on the dispositions in a will that has been made before the divorce or annulment. Research on the legal position in the German, Spanish, Swedish, Portuguese, Dutch and English law of succession has shown that, despite differences in approach, a common trend is noticeable,30 for it is increasingly widely held that any bequest in the will in favour of the former spouse becomes ineffective. A further point worth noticing is that in all these systems that legal consequence is premised on the hypothetical intention of the testator. In the final analysis it needs to be stressed that the general trend towards greater harmonisation in the European law of succession, as described by comparative scholars, has not been the result of a deliberate policy of the different national legislatures. It may be explained by the common social developments intimately linked with the law relating to the family.31 (4) Economic factors32 As indicated, the principle of forced succession within the family is based on social considerations. However, where a person is allowed to dispose freely of his property by will a different principle becomes relevant. Friedman33 submits that the principle at work here is that of gift, an economic principle: The principle of gift, since it exalts the volition of the property holder, is consistent with free market economics … Individuals as holders of private property may dispose of it as they see fit. The principle of gift can be called economic. Despite the paradox that a gift is not an economic transfer, the principle of gift is necessary to the economic system and is presupposed by it. 28 See Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC). 29 Cretney (n 26) at 93-94; De Waal (n 22) at 173. 30 A Vaquer, “Wills, divorce and the fate of dispositions in favour of the spouse: a common trend in European succession laws” (2003) 11 European Review of Private Law 782 ff. See also chapter 8 below on the issue of revocation of wills by subsequent marriage or divorce. 31 Pintens (n 27) at 629. 32 See in general De Waal (n 22) at 166-169 with further references. 33 Friedman (n 25) at 353.

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From forced succession the emphasis today has shifted to the principle of freedom of testation.34 As this freedom is of vital importance in any developed system of testate succession, both its economic importance and its economic implications have received the attention of researchers in the field. At the same time, the principle and the limitations placed on it have received their fair share of attention by comparative scholars.35 As has been noted at the outset,36 a will is an instrument by means of which wealth is transferred. Wills have therefore been described as “economic documents of vital importance”.37 However, John Langbein has convincingly demonstrated how the general importance of wills as means of wealth transfer has been considerably diminished in recent times.38 The first development, in this context, has been the emergence of so-called “will substitutes”. In the United States of America, for example, forty-four states have enacted laws based on what is called the “Uniform Non-Probate Transfers on Death Act” that is based on a model statute proposed in 1991. Non-probate transfers on death “are ‘nontestamentary’ in nature, meaning that the beneficiary takes the property outside the legal structure of probate court administration and law”.39 Such transfers or “will substitutes” include (but are not limited to):40 (a) insurance policy benefits; (b) mortgages; (c) promissory notes; (d) securities; (e) deposit agreements; (f) deeds of gift; and (g) pension and retirement plans. A second development concerns fundamental changes in the nature of wealth.41 In the past land has been the dominant form of wealth. More recently, however, two new forms of private sector wealth have become increasingly important, i.e. financial assets (such as stocks, bonds, bank deposits, shares and insurance contracts) and human capital (the skills and knowledge forming the basis of advanced technological life). Especially the importance of the latter has increased the significance of lifetime transfers of wealth (such as expenditure on the education of children) as opposed to transmissions of wealth on death.42 34 35 36 37 38 39 40 41 42

See further D. below and chapter 5. See further D. below. See A. above. Friedman (n 25) at 371. J H Langbein, “The nonprobate revolution and the future of the law of succession” (1984) 97 Harvard LR 1108 ff. Buser (n 26) at 324. See n 39 above. J H Langbein, “The twentieth-century revolution in family wealth transmission” (1988) 86 MichLRev 722 at 723. See also Cretney (n 26) at 91. Langbein (n 41) at 722.

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And, finally, there is an important social fact with economic implications: many people live longer (and therefore outlive their period of productive employment) which means that a second “great cycle of saving and dissaving” is being constituted (the first being the expenditure on children’s education).43 People live longer and through the system of annuitisation much of their pension wealth (held in financial assets) is consumed during their lifetime. The result is that only a small fraction of pension wealth finds its way into intergenerational transfers.44 However, one has to be careful not to overgeneralise. For example, different factors may be relevant in societies with a strong social support system for the aged. With reference to the German situation, Pintens points out how the average size of estates has increased over the last number of years.45 One reason for this trend is the revalorisation of pensions (the allocation of additional funds for pension schemes) which resulted in a bigger income for retired people. This meant that savings could often be left untouched and could be allowed to grow through the capitalisation of interest. In general, however, one has to accept that changes in “the timing and in the character of wealth transmissions”46 have had an influence on the relative importance of wills as instruments of wealth transfer. There can be no doubt that this and other economic trends do and will have an influence on the law of testate succession. One possibility is, again, that common trends may result in the laws of different systems moving closer towards each other. There is still much scope for comparative work in this regard. C. PRIVATE INTERNATIONAL LAW AND COMPARATIVE RESEARCH (1) Typical problems The law of succession can, of course, generate numerous private international law (conflict of laws) problems. To give just one typical example: the testator, a national of country A, makes a will according to the law of country A; he then becomes a habitual resident of country B; and he eventually dies in country C, but with beneficiaries and property in countries A, B, C and D. The law of which country will regulate the validity of his will? Under the law of which country will his estate be administered? Will the answers 43 44 45 46

Langbein (n 41) at 743. Langbein (n 41) at 745. Pintens (n 27) at 628. Langbein (n 41) at 723.

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to these questions be dependent on the nature of the person’s property, for example, whether it is movable or immovable property? Will the positions of the different beneficiaries differ depending on the particular country in which they find themselves? Of course, the dilemma is that there is not a single set of answers to these questions: it will all depend on which country’s private international law rules are to be applied. (2) Public international law instruments In order to address this dilemma a number of international instruments, dealing with a variety of issues, have been created. Examples include: (a) The 1973 Convention Providing a Uniform Law on the Form of an International Will (the Washington Convention) created a so-called “international will” in an attempt to regulate and unify the issue of the formal execution of wills. The bewildering number of variations possible in this context has already been pointed out.47 The international will, as a device for unification, has not been as successful as was hoped since several contracting states have simply added the international will to the number of their existing wills; and the rules for interpreting the Uniform Law are not identical in all the contracting states.48 This Convention goes one step further than the 1961 Hague Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions, which had the more modest aim of establishing common provisions on the conflict of laws relating to the form of testamentary dispositions. (b) The 1989 Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons allows a testator to choose either the law of his nationality or the law of his habitual residence at the time of the making of the will to govern the succession to his estate.49 This means that the testator’s plan of succession will be unaffected, even if he subsequently changes his nationality or habitual residence.50 The Convention also contains a chapter on “agreements as to succession” (pacta 47 See A. above. 48 Verbeke & Leleu (n 6) at 349. The Uniform Law on the Form of an International Will is an Annex to the Convention and it contains the relevant provisions for the international will. See in general regarding this Convention C Hall, “Towards a uniform law of wills: The Washington Convention 1973” (1974) 23 ICLQ 851. 49 Art 5. 50 D J Hayton, “The problems of diversity”, in D J Hayton (ed), European Succession Laws (1998) 1 at 12.

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successoria)51 and a chapter with so-called “general provisions”.52 (c) The 1985 Hague Convention on the Law Applicable to Trusts and on their Recognition does not introduce the trust into non-trust countries but creates a common set of conflict of law rules in terms of which trust problems can be dealt with. This Convention has been quite successful judged by the number of countries which have ratified it.53 Comparative research has identified Italy and the Netherlands (two of the countries that have ratified the Convention) as civilian jurisdictions where the Convention may prove to be the catalyst for the development of an internal trust.54 (d) The 1973 Hague Convention concerning the International Administration of the Estates of Deceased Persons has not been a success. It has only been ratified by a small number of countries, and in England, for example, the Law Commission is believed to have concluded that the Convention’s complexities make it impractical for implementation.55 (3) The role of comparative scholarship As pointed out by Zweigert and Kötz, the areas of comparative law and conflict of laws are on the face of it entirely distinct, but they interact.56 Indeed, according to these authors comparative law may be enormously valuable for private international law – “indeed so indispensable for its development that the methods of private international law today are essentially those of comparative law”.57 The role of comparative lawyers in the creation of the instruments mentioned above is self-evident. And although such instruments are distinct from the harmonisation enterprise, they can in themselves provide some momentum towards harmonisation. Closely linked with private international law problems in the law of succession is the practical issue of a lawyer of country A having to advise a prospective testator, a national of country B but habitually resident in country A, on succession issues regarding property situated in both countries A and B (and possibly also country C). In other words, lawyers are increasingly faced with the reality of people building up estates in more than one country, and with the task of advising such people during their lifetime, as well as their heirs, on 51 52 53 54 55 56 57

Ch III. Ch IV. Hayton (n 50) at 15. See E.(4) below. Hayton (n 50) at 14. Zweigert & Kötz, Comparative Law (n 11) 6. See n 56 above.

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complex and bewildering questions regarding the law of succession of more than one country. This has become a common scenario due to factors such as globalisation, internationalisation of businesses, mobility of people and jobs, increasing affluence, affordability of foreign travel, etc.58 In order to meet the needs of lawyers faced with this sort of dilemma, a very specific type of comparative law project is required. An excellent example of such a project is the book International Succession.59 It adopts a strategy of what may perhaps be referred to as “vertical comparison”. The book contains chapters, or “reports”, in alphabetical order on more than forty different countries. The chapter on each particular country is based on responses to a uniform and very comprehensive questionnaire. The questionnaire itself is divided into two sections. The first deals with a “brief survey of the local system”. Here questions such as the following are posed: (a) type of system (“Civil Law, Common Law or other”); (b) forms of wills (including questions relating to formalities, amendment, revocation and revival); (c) the order of succession in cases of intestacy; (d) the importance of freedom of testation in the system (including the issue of forced succession); (e) matrimonial regimes; (f) capacity to make and witness a will and to be an heir; (g) grounds for invalidity of wills; (h) estate taxes; and (i) administration of estates. The second section of the questionnaire focuses on the “applicable law/procedure where foreign elements are involved”. Questions dealt with here include those relating to (a) jurisdiction; (b) the applicable law (for example, law of domicile or nationality); (c) the enforcement of foreign succession or inheritance orders; (d) the way expert evidence is dealt with; and (e) whether the formalities of a will executed in a foreign country must be the same as those in the local country for such a will to be recognised or submitted for a succession order. A project altogether more ambitious than the one just described is Internationales Erbrecht, a long-established looseleaf publication in eight volumes covering the law of succession of more than sixty countries.60 The list includes a number of countries on which one does not often find comparative law material, such as Albania, Armenia, Ecuador, Morocco, Mongolia, Ukraine and Uzbekistan. The standard pattern that is followed with regard to many countries is that of a detailed exposition of both the conflict of law rules with regard to the law of succession and the substantive law of succession. With regard to the latter, the focus falls on issues such as the general principles 58 See R A D Urquhart, “Introduction”, in L Garb (ed), International Succession (2004) 1. 59 L Garb (ed), International Succession (2004). 60 M Ferid, K Firsching, H Dörner and R Hausmann (eds), Internationales Erbrecht (looseleaf).

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of succession, the rules of intestate succession, the important issues relating to testate succession (for example, the capacity to make a will, the forms of will, formalities for the execution and amendment of wills and revocation of wills) and, finally, administration of deceased estates. In most – though unfortunately not all – instances the country’s relevant statutory texts are also included. In the case of some countries, however, only the statutory texts are provided. Despite its possible deficiencies – for a number of countries the information is out of date – one can only agree with the assessment of a prominent comparatist that this is a “monumental” work.61 Of course, this “vertical” type of comparison is not yet comparative research in the sense in which the term is understood most often. But, apart from providing the practical answers to questions asked by lawyers faced with the necessity of having to apply foreign law, projects such as these contain a mine of information for proper (“horizontal”) comparative research. D. FREEDOM OF TESTATION AND ITS LIMITATIONS (1) The principle of freedom of testation There can be no doubt that all developed systems of testate succession are based on the premise of freedom of testation: a testator can, in principle, decide who is to inherit his property. Equally, however, no developed system recognises unlimited or unrestricted freedom of testation. Despite the validity of these basic propositions there remains a striking divergence between the ways this issue is approached, for example, in the Anglo-American Common Law systems and the Continental Civilian systems. And, again, it has been the task of the comparative researcher to analyse and describe these differences and to confront the questions why these differences in approach exist and whether there is a trend towards common ground. (2) The identification of patterns: the role of comparative research The first important limitation that can be placed on freedom of testation is the potential claims of the spouse, the children, or even other relatives of the testator. In Anglo-American systems the point of departure has traditionally been (and to an extent still is) one of more or less unlimited freedom. In civilian systems, on the other hand, the notion of forced heirship is recognised: certain family members are seen to have a natural and indefeasible claim to a part of the testator’s wealth. 61 See the review by R Zimmermann (2003) 7 Neue Juristische Wochenschrift 495 ff.

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There appears to be scope for more research regarding the fundamental reasons underlying this difference in approach. In Continental Europe the notion that a person’s property (or at least a part of it) belongs in a sense to his family still seems to be firmly entrenched. Therefore, forced succession is premised on the idea of “solidarity between the generations”.62 This gives a right to specific heirs not to be left unprovided for. Forced succession, therefore, has a maintenance function. Ethical, philosophical and Natural law arguments are generally advanced in favour of rules on forced succession.63 But even with reference to Continental Europe the danger of over-generalisation has to be avoided. Comparative studies have shown, for instance, that the range of beneficiaries under the rules of forced succession is not the same everywhere.64 To mention a few examples: (a) in France only the children and the parents of the deceased are forced heirs; (b) in Denmark it is the spouse and the children; (c) in Germany the descendants, the parents and the spouse; and (d) in Sweden and Norway only the children. Another explanation, coming from the Common Law side, is the “lack of the concept of the trust in Civil Law systems and its presence in Common Law systems”.65 The argument is that “it makes dynastic and financial sense in one’s lifetime to transfer majority shareholdings in companies to trustees to manage for the benefit of one’s spouse and descendants rather than allow small minority shareholdings to pass absolutely to each of one’s heirs”.66 Such “lifetime provision” would then be taken into account at a person’s death.67 However, in the light of the exposition below,68 this view should be judged with scepticism. While, therefore, at first blush there appears to be a wide gulf separating the two systems, on closer inspection it may not be all that wide – and it may indeed be narrowing. In Common Law systems the tendency has been to introduce the possibility of maintenance claims – in English law called “family provisions” – in terms of which a discretionary allocation can be made in favour, especially, of the surviving spouse and dependent children. In Continental Civilian systems the tendency has increasingly been to narrow the circle of relatives who have a fixed claim against the estate and also to 62 Pintens (n 27) at 638. 63 Pintens (n 26) at 423. 64 D Henrich, “Familienerbrecht und Testierfreiheit im europäischen Vergleich”, in D Henrich and D Schwab (eds), Familienerbrecht und Testierfreiheit im europäischen Vergleich (2001) 372 at 380. 65 Hayton (n 50) at 8. 66 See n 65 above. 67 See n 65 above. 68 See E. below.

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limit the claim to one sounding in money (as opposed to a claim to a specific asset or assets).69 What is more, questions have been raised in Continental systems as to whether the whole concept of forced succession is not perhaps in need of a total revision.70 A first consideration is that the idea of forced succession is based on outdated social premises (for example, that children have a natural claim to their parents’ wealth in order to give them a start in life). Another is the fact (also a social issue) that life expectancy has increased dramatically. This means that children now often inherit at an age when they have already built up their own estates. The “maintenance function” of the law of succession has therefore become less convincing. Finally, there is the more fundamental question whether such a drastic curtailment of freedom of testation can at all be justified in modern times. Why should a person who can freely dispose of his property during his lifetime be curtailed so drastically in this freedom upon death?71 Against the background of these considerations it is interesting to note that the Common Law approach of a flexible, discretionary maintenance claim is mentioned as a model for possible reform in the Continental systems.72 (3) Other focal areas There are at least two further areas of the law of succession where comparative research has focused on the principle of freedom of testation. They will be mentioned only briefly. The first is the issue of inheritance contracts (pacta successoria) where the principle of freedom of testation comes into conflict with another fundamental freedom, i.e. the freedom of contract. Here comparative research has again shown two fundamentally different approaches.73 In the Romanistic legal family inheritance contracts are in principle invalid, since they are taken to be against public policy (contra bonos mores). In the Germanic legal family, on the other hand, such contracts are in principle valid. However, this seemingly stark difference is somewhat softened if account is taken of the exceptions to the principle of invalidity 69 Verbeke & Leleu (n 6) 342-343; Pintens (n 26) at 421-424. 70 See, in general, K Kuchinke, “Uber die Notwendigkeit, ein gemeineuropäisches Familien- und Erbrecht zu schaffen”, in Europas universale rechtsordnungspolitische Aufgabe im Recht des dritten Jahrtausends: Festschrift für Alfred Söllner (2000) 589 at 604-610; Pintens (n 27) at 638-639; Sonnekus (n 27) at 83-86. 71 See, e.g., for the discussion of this question in the context of the German law relating to the Pflichtteil, K W Lange, “Die Pflichtteilsentziehung gegenüber Abkömmlingen de lege lata und de lege ferenda” (2004) 204 Archiv für die civilistische Praxis 804 ff. 72 Pintens (n 27) at 638-639; Sonnekus (n 27) at 83-86. 73 See Pintens (n 27) at 644. See also chapter 13 below.

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in the Romanistic legal family. For example, testamentary provisions in an antenuptial contract as well as the so-called donatio mortis causa (a donation made in contemplation of the donor’s death) are both regarded as valid. Another area where the principle of freedom of testation has featured in the context of comparative research is that of the possible limitations placed on this freedom by non-discrimination provisions in Constitutions and other human rights instruments. Among the questions that are relevant in this context are the following: (a) can a testator disinherit a potential beneficiary on grounds such as race, gender, sexual orientation or religion?; and (b) can a testator make a benefit subject to a condition that seeks to control the conduct of the beneficiary on grounds such as those just mentioned? South Africa provides a good illustration of a jurisdiction where comparative research has proved to be extremely useful in developing a rational approach to these types of question that became relevant after the country accepted a human rights dispensation in the mid-1990s.74 E. THE CONTENTS OF WILLS: THE EXAMPLE OF THE TRUST (1) Introduction Once one moves to the contents of wills, a vast vista for comparative research opens. Obvious examples of testamentary institutions that can be the subject of comparative work include those covered in this book, i.e. testamentary conditions,75 fideicommissary substitution,76 or mutual wills.77 Another example is the trust – an institution that is also relevant in the context of the law of succession in view of the fact that it is often created in wills. For purposes of this chapter the focus will fall on some of the important work that has already been done by comparative researchers in the field of trust law, specifically regarding the introduction of the trust into Civilian and mixed jurisdictions. This particular topic illustrates the immense value of comparative scholarship in discarding mistaken assumptions and testing conventional wisdom. (2) A unique institution of the Common Law? It has for long been thought that the trust is a distinctive institution of the English Common Law. Typical assertions in this vein are that the trust is a 74 See, e.g., F du Toit, “The limits imposed upon freedom of testation by the boni mores: lessons from Common Law and Civil Law (continental) legal systems” (2000) 11 Stellenbosch LR 358 ff. See also chapters 5 and 6 below. 75 See chapter 6 below. 76 See chapter 9 below. 77 See chapter 12 below.

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“uniquely Anglo-American institution” and that the “Continental legal tradition did not develop the trust”.78 At the heart of this view lies the insistence of many Anglo-American (and specifically English) lawyers that the trust should be defined in terms of a divided title between the trustee and the beneficiary.79 The trustee has “legal ownership” of the trust property and the trust beneficiary “equitable ownership” or “beneficial ownership”. The explanation for this is historical, for there is indeed a close link between the English trust and Equity, the system of law developed by the Chancellor in reaction to the more rigorous Common Law. The interest of the beneficiary under the use (the forerunner of the trust) could not be enforced under the Common Law. However, in Equity the Chancellor acknowledged the beneficiary’s interest in the property. In due course it was recognised as a proprietary interest (that is, equitable ownership) that could in general be enforced also against third parties. This was the origin of the distinction between the trustee’s “legal ownership” and the trust beneficiary’s “equitable ownership” – a distinction that was perpetuated in some British colonies, for example North America, Australia, the Bahamas, Bermuda and the Cayman Islands.80 However, more recent trust scholarship is critical of this inclination to define the trust strictly in terms of a divided title.81 First, the assertion that the trust is completely foreign to the Continental legal tradition has been shown to be an over-simplification from an historical perspective. Although Roman law did not know the trust as such, there are signs in Roman law of “trust-like” devices and “trustee-like” persons.82 This already tends to show that there are indeed links between the English trust and Continental institutions such as fideicommissum, fiducia and “Treuhand” – that there is a “common core” that unites them.83 Some researchers see an even stronger link. Maurizio Lupoi,84 for example, argues that the English Chancellors (without mentioning their sources) drew on a wealth of thirteenth- and fourteenth-century Civil Law 78 J H Langbein, “The contractarian basis of the trust” (1995) 105 Yale LJ 625 at 669. 79 M J de Waal, “The core elements of the trust: aspects of the English, Scottish and South African trusts compared” (2000) 117 SALJ 548 at 550. 80 D J Hayton, Hayton & Marshall: Commentary and Cases on the Law of Trusts and Equitable Remedies, 11th edn (2001) 5. 81 See, e.g., M J de Waal, “In search of a model for the introduction of the trust into a civilian context” (2001) 12 Stellenbosch LR 63 at 65. 82 D Johnston, “Trusts and trust-like devices in Roman law”, in R Helmholz and R Zimmermann (eds), Itinera Fiduciae: Trust and Treuhand in Historical Perspective (1998) 45 ff. 83 R Helmholz and R Zimmermann, “Views of trust and Treuhand: an introduction”, in R Helmholz and R Zimmermann (eds), Itinera Fiduciae: Trust and Treuhand in Historical Perspective (1998) 27 at 30. 84 M Lupoi, “The civil law trust” (1999) 32 Vanderbilt Journal of Transnational Law 967 at 975.

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authority in their development of the English trust. For him it is therefore not far-fetched to refer to these Civil Law institutions as being the “foundation” of the English trust. Even though his research is conducted from a different angle, the conclusions of Patrick Glenn broadly echo those of Lupoi. In Glenn’s view the introduction of the trust into a Civilian context is not a question of the importation of a foreign legal institution but rather of “revivifying ideas of the common law of Europe”.85 The issue need not be approached historically. According to Bernard Rudden86 the orthodox explanation of the trust in terms of the distinction between law and Equity provides only “an historical [in terms of English law] and not a rational account of the trust”. Approached rationally, the question is therefore: can one have a “proper” trust without such a divided title? (3) The trust in Civilian and mixed jurisdictions The question whether one can have a “proper” trust in Civilian and mixed jurisdictions where the law/Equity distinction is unknown has also received some scholarly attention in recent times. An analysis and a synthesis of research done especially in the context of mixed jurisdictions such as Scotland and South Africa have shown that this question can be answered in the affirmative if the following core elements are present:87 (a) a trustee who fills a fiduciary position (meaning, among other things, that the trustee must act with scrupulous loyalty in the interest of the trust beneficiaries); (b) a separation between the trustee’s personal estate and the trust estate; (c) the operation of real subrogation (meaning that the proceeds of a trust asset, if it has been sold, or of a substitute asset, if the proceeds have been used for its purchase, will also be subject to the trust); and (d) the construction of trusteeship as an office. Lupoi is critical of this “common core” approach. He prefers to define the trust in comparative law terms and to investigate whether the trust is to be found in Civil Law countries. For Lupoi an appropriate definition of the trust in comparative law terms would include the following elements:88 (a) the transfer of property to the trustee or a unilateral declaration of trust; (b) the absence of “commingling” between trust property and property in the 85 H P Glenn, “The historical origins of the trust’, in A M Rabello (ed), Aequitas and Equity: Equity in Civil Law and in Mixed Jurisdictions (1997) 749 at 776. 86 B Rudden, “Things as things and things as wealth” (1994) 14 Oxford Journal of Legal Studies 89. 87 See, in general, De Waal (n 79) at 548 ff with further references; De Waal (n 81) at 66 ff, also with further references. 88 Lupoi (n 84) at 970.

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trustee’s personal estate (this corresponds with the second “core element” above); (c) the loss of any power of the founder (or settlor) of the trust over the trust property; (d) the existence of trust beneficiaries or a trust purpose; and (e) the imposition of a fiduciary component upon the exercise of the trustee’s rights (this corresponds with the first “core element” above). Once one has concluded that the concept of a divided title is not a prerequisite for a proper trust, the focus can shift to the different possible ways in which the trust can be introduced into Civilian or mixed jurisdictions. Here comparative research has shown that it is not possible, or indeed necessary, to identify one single model for such an introduction.89 By way of illustration a few examples from some Civilian and mixed jurisdictions can be given. Thus, the trust was introduced into Liechtenstein, Mexico and Panama by way of specific legislation during the 1920s.90 The legislation in Mexico and Panama was inspired by Civilian concepts (particularly the fideicommissum), while the Liechtenstein statute was drafted under the influence of AngloAmerican law.91 Lupoi92 provides numerous further examples (such as Argentina, Colombia, Ecuador, Japan and Israel) that are worth analysing from a comparative perspective. This work of Lupoi should ideally be read against the background of the earlier comprehensive comparative study by Fratcher.93 The introduction of the trust into some of the mixed jurisdictions also followed different patterns. In Scotland, for example, the trust emerged in the course of the seventeenth century. It is not clear exactly how this happened but it is possible that Civilian concepts such as depositum, mandatum and the fideicommissum played a role.94 Certainly the available evidence does not indicate anything like a reception of English trust law in Scotland.95 Considerable English influence in the nineteenth century, and later, came only after the trust had established itself as an independent institution. The story of the introduction of the trust into South African law, another mixed system, is quite different. The trust that was introduced into South Africa by British settlers in the course of the nineteenth century was indeed the English trust.96 However, it was quickly transformed into an institution 89 90 91 92 93 94

De Waal (n 81) at 63 ff. K W Ryan, “The reception of the trust” (1961) 10 ICLQ 265 ff. See n 90 above. M Lupoi, Trusts: A Comparative Study (2000) 201 ff. W F Fratcher, “Trust”, in International Encyclopedia of Comparative Law vol VI, ch 11 (1973). G Gretton, “Trusts”, in K Reid and R Zimmermann (eds), A History of Private Law in Scotland (2000) vol 1 480 at 490-491. 95 Gretton (n 94) at 502-506. 96 T Honoré, “Trust”, in R Zimmermann and D Visser (eds), Southern Cross: Civil Law and Common Law in South Africa (1996) 849 at 850.

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that could be explained in Civilian terms. This was done, again, by the extensive use of Civilian concepts such as the fideicommissum (in the case of the testamentary trust) and the stipulatio alteri (in the case of the inter vivos trust). Thus, neither in Scotland nor in South Africa did legislation play a role in the initial introduction of the trust. In other mixed jurisdictions, such as Louisiana and Quebec, legislation was of central importance in this regard. The specific legislative histories fall outside the scope of this chapter but the final result is, in the case of Louisiana, a specific Trust Code and, in the case of Quebec, a number of chapters in its general Civil Code.97 (4) Trust-like institutions in Continental Europe With the exception of Liechtenstein a proper trust law has not been developed in Continental Europe. However, it has been noted that it would be wrong to conclude from this that the “trust idea” is completely foreign to Continental legal thinking. A ground-breaking historical and comparative analysis of “trust-like” institutions in Continental Europe has illustrated this convincingly.98 Indeed, examples of such institutions from Dutch law (such as the fiducia cum amico, the bewind and the stichting) and German law (such as the Treuhand and the Stiftung) are often used by comparative lawyers to indicate points of contact with the trust. Regarding the position of the trust in Continental Europe, interesting developments have taken place in Italy and in the Netherlands which can only be properly understood against the background of the Hague Convention on the Law Applicable to Trusts and on their Recognition (1985). As indicated above,99 the aim of this Convention is not to introduce the trust into the domestic law of states that do not already have it, but rather to establish a set of common conflict of law rules on the law applicable to trusts. Italy, Luxembourg and the Netherlands are the only Continental countries that have thus far ratified the Convention (although France has also signed it). In the cases of Italy and the Netherlands ratification has, however, set a process in motion that may eventually lead to the acceptance of the trust as a substantive institution.

97 A N Yiannopoulos, “Trust and the civil law: the Louisiana experience”, in V V Palmer (ed), Louisiana: Microcosm of a Mixed Jurisdiction (1999) 213 ff; M Cantin Cumyn, “The trust in a civilian context: the Quebec case” (1994) 3 Journal of International Trust and Corporate Planning 69 ff. 98 See R Helmholz and R Zimmermann (eds), Itinera Fiduciae: Trust and Treuhand in Historical Perspective (1998). 99 See C.(2) above.

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Lupoi,100 in particular, strongly argues that the Convention allows citizens of member states (such as Italy) to establish trusts governed by a foreign law. For example, a trust can be established in Italy by an Italian founder with an Italian trustee and beneficiary and with the trust property situated in Italy, but with English law governing it (if this was the founder’s choice of law). Although there are those who disagree with Lupoi’s interpretation of the Convention,101 there are apparently numerous examples of this “domestic trust” (trust interno) to be seen in Italian practice. In the Netherlands the ratification of the Convention was accompanied by special legislation. This statute, the Wet Conflictenrecht Trusts (1995), was thought necessary in order to reconcile some rules of Dutch domestic law with the obligations under articles 11 and 15 of the Convention. One of the main aims of the statute was to ensure, beyond any doubt, that “the trust fund is regarded as a separate protected fund … and not part of the trustee’s patrimony available to satisfy his creditor’s claims …”102 This recognition of the concept of a separate trust estate can be seen as an important step on the way to a proper Dutch trust. One of the objectives of the Principles of International Trust Law,103 prepared by an international working group with a strong comparative focus, is to assist countries interested in implementing the Convention. The project had the further purpose of meeting “the needs of those who have observed the usages to which the trust concept is put … but who find themselves puzzling over what exactly are the basic elements of the trust, and in particular of the common law trust”.104 F. THE TRANSFER OF THE ESTATE UPON DEATH (1) Introduction Researchers in the law of succession often shy away from more practical matters such as the transfer of the deceased person’s estate or its administration. However, both can have a profound impact on a number of very 100 M Lupoi, “Trusts and civilian categories (problems spurred by Italian domestic trusts)”, in R Helmholz and R Zimmermann (eds), Itinera Fiduciae: Trust and Treuhand in Historical Perspective (1998) 495 ff; Lupoi (n 84) at 980. 101 See, e.g., A Gambaro, “Trust in Continental Europe”, in A M Rabello (ed), Aequitas and Equity: Equity in Civil Law and in Mixed Jurisdictions (1997) 777 at 780. 102 D J Hayton, “Trusts”, in D J Hayton et al (eds), Vertrouwd met de Trust: Trust and Trust-Like Arrangements (1996) 3 at 58. 103 D J Hayton, S C J J Kortmann and H L E Verhagen (eds), Principles of European Trust Law (1999). 104 D J Hayton et al, “Introduction to the Principles of European Trust Law”, in D J Hayton, S C J J Kortmann and H L E Verhagen, Principles of European Trust Law (1999) 3 at 11.

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fundamental issues, chief among them the vesting of rights. The transfer of the estate upon death has only relatively recently been the subject of comprehensive comparative research in the European context.105 (2) Categorisation A central distinction is that between the transfer of the deceased’s assets and the transfer of liability for the deceased’s debts. Regarding the transfer of assets, two criteria are used to distinguish between three typical solutions. The first criterion concerns the directness of the transfer: do the assets pass to heirs directly or only through an intermediary? The second concerns the immediacy of the heir’s ownership: does he become owner immediately upon the deceased’s death or is the transfer postponed to a later moment? Against this backdrop the following typical solutions have been identified: (a) Ownership is transferred directly and immediately to the heirs by operation of law. This is the system, for example, in Belgian, French, German and Swiss law. (b) Although no intermediary is involved, there is no immediate transfer of ownership because an act of adiation or acceptance by the heirs must first occur. Transfer of ownership is therefore deferred, or postponed, to a point in time after the deceased’s death. This system prevails, for example, in Austrian, Italian and Spanish law. (c) Ownership is transferred indirectly through an executor or representative; again, an act of adiation or acceptance by the heirs is required before they can become owners. This is the way succession upon death operates in English law and other Common Law systems. As regards the liability for the deceased’s debts, the question is whether this is restricted to property belonging to the estate or whether it extends to the personal property of the beneficiary. Once again, there are three typical solutions that have been identified: (a) The first possibility is one that tends towards unlimited liability in the sense that the heirs can be held personally liable (that is, with their personal property) for the debts of the estate. However, there is normally a variety of devices available that can be used by the heirs to protect themselves against such personal liability. French law provides an example for this type of regime. 105

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For the exposition that follows, see Verbeke & Leleu (n 6) at 338-340.

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(b) Other legal systems, such as German law, tend to subscribe to a regime of limited liability where the personal estates of the heirs are somewhat better protected against debts that have been incurred by the deceased. (c) The third possibility is the English system of executorship where an executor, or representative, administers the estate of the deceased before any transfer of property to the beneficiaries can take place. The administration of the estate primarily entails the settling of debts out of the property in the estate. The beneficiaries have only a claim (or personal right) against the executor or representative to transfer the property remaining in the estate after the debts have been settled. There is thus no question that they can ever be burdened with the deceased’s debts. The worst that can happen is that they receive nothing. (3) The role of the executor or representative The possibility of a direct transfer of the estate to the heirs is based on the concept of universal succession that prevails in Civilian systems. This constitutes a fundamental contrast to the English system where the executor, or representative, acts as an intermediary between the deceased and the heirs. However, it does not mean that the institution of executorship is foreign to Continental European systems. Quite the opposite is true. The following remark by Reinhard Zimmermann encapsulates the reality:106 The institution of executorship appears to be an indispensable part of a modern law of succession and is known to all modern European legal systems. It constitutes part of a contemporary European ius commune.

But while the appointment of an executor is also common in succession systems governed by the concept of universal succession, there are significant differences between executorship in English law and in Continental legal systems. And even in these Continental systems there are important “national modifications”.107 Zimmermann has subjected the institution of executorship to a thorough historical and comparative analysis in order to explain, on the one hand, the fundamental difference between the English and Continental models and, on the other hand, the variations in the Continental model. 106 R Zimmermann, “Heres fidiciarius? Rise and fall of the testamentary executor”, in R Helmholz and R Zimmermann (eds), Itinera Fiduciae: Trust and Treuhand in Historical Perspective (1998) 267 ff. 107 Zimmermann (n 106) at 267.

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Another comparative study suggests that if a uniform law of succession and administration of estates is to be considered for a European private law, something along the lines of the English executorship would be worthy of closer scrutiny.108 As is illustrated elsewhere in this book,109 the concept of universal succession was part of Roman-Dutch law and it was therefore received in South Africa. However, this changed when universal succession was replaced with the English model of executorship in the course of the nineteenth century. This may explain why, even today, there is still no clarity in South African law in connection with a number of important issues. Examples include the exact mechanism concerning the vesting of rights at the deceased’s death and the question as to who is the owner of the property in the period between the deceased’s death and the transfer of the property by the executor to the heirs. The latter question is also relevant in systems where there is a direct but deferred transfer to the heirs. The comparative studies referred to above provide the framework within which answers to these kinds of questions should be sought. G. CONCLUDING REMARKS The law of succession often projects a static – even a sterile – image. A possible explanation is that certain areas of the law are somewhat technical. Here one thinks of the rules of intestate succession and the formalities required for the execution and amendment of wills. Another possibility is the perceived indigenous character of the law which often translates into a reluctance to engage in comparative research. Nonetheless there is more activity than sometimes appears. As John Langbein has written:110 Over the course of the twentieth century, persistent tides of change have been lapping at the once-quiet shores of the law of succession.

The central thesis of this chapter is that these changes have been detected and explained principally by means of comparative scholarship. Two general issues have been identified by that scholarship. The first is the significance of social and economic change and its impact on aspects of the law of succession. In this regard the intimate relationship between the law of succession and family law has been stressed. These changes have 108 Sonnekus (n 27) at 74. 109 See chapter 4 below. 110 Langbein (n 38) at 1108.

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also provided a common denominator between different national systems of succession which have previously been perceived as being indigenous in character and therefore hardly worth the effort of comparative research. Secondly, the identification and analysis of these changes have been the stimulus for a new mission for comparative researchers in the field of the law of succession. This is the quest for greater harmonisation, especially in the European context. In the modern world, the law of succession cannot be confined to national boundaries or disregard the principles of conflict of laws. Comparative research has also proved valuable in a number of more specific areas of the law, notably the principle of freedom of testation and its possible limitations, the institution of the trust and, finally, the transfer of the estate upon death. In the discussion of the various topics in this chapter a number of specific challenges for comparative scholars have been identified. Apart from that, however, it is to be expected that the general areas of the impact of social and economic changes on the law of succession, and the issue of harmonisation, will remain a significant focus for comparative work. Another area will probably be the impact of constitutional provisions and human rights instruments on freedom of testation. The significant results yielded by comparative research on the trust should serve as a stimulus for research on other testamentary institutions. Indeed, the comparative work in this book on topics such as the fideicommissum, other forms of substitution, mutual wills and testamentary conditions illustrates this assertion. And finally, there is still much to be done on the history of the law of succession, both within individual countries and in a comparative context. It is with history that the substantive chapters of this book begin.

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2 Compulsory Heirship in Roman Law Reinhard Zimmermann A. B. C. D. E. F. G. H. I. J.

INTRODUCTION THE DEVELOPMENT OF FREEDOM OF TESTATION DISINHERITANCE OF SUI UNDER THE IUS CIVILE PRAETORIAN MODIFICATIONS THE QUERELA INOFFICIOSI TESTAMENTI FURTHER RESTRICTIONS ON DISPOSAL JUSTINIAN’S REFORMS UP TO 542 AD THE REFORM OF 542 AD (NOVEL 115) SUPPLEMENTARY RULES BALANCE SHEET A. INTRODUCTION

All modern legal systems in Europe attempt to balance the moral precept of family solidarity with the principle of freedom of testation. But they do so in different ways.1 In German law, for example, the closest relatives are given the right to claim a “compulsory portion” (Pflichtteil) of the estate.2 The idea of a certain part of the estate having to go to the deceased’s closest relatives 1 For an analysis of the relevant policy debates, see J Beckert, Unverdientes Vermögen: Soziologie des Erbrechts (2004) 35 ff. 2 §§ 2303 ff BGB. Conversely, French law allows the testator to dispose only in respect of a certain part of his estate (the quotité disponible), the remainder going to the héritiers réservataires. See M Ferid and H J Sonnenberger, Das Französische Zivilrecht, 2nd edn, vol 3 (1987) 5 C 201 ff. English law differs from both French and German law in that it neither recognises a quotité disponible nor a compulsory portion but subscribes to the principle of unlimited freedom of testation. However, the probate court can, under certain circumstances and upon application, order persons who had been maintained by the deceased to be financially supported from his estate; for an analysis, in comparative perspective, see M Trulsen, Pflichtteilsrecht und englische family provision im Vergleich (2004). For a general comparative overview, see D Henrich and D Schwab (eds), Familienerbrecht und Testierfreiheit im europäischen Vergleich (2001), and D Martiny, “Empfiehlt es sich, die rechtliche Ordnung finanzieller Solidarität zwischen Verwandten in den Bereichen des Unterhaltsrechts, des Pflichtteilsrechts, des Sozialhilferechts und des Sozialversicherungsrechts neu zu gestalten?”, in Verhandlungen des 64. Deutschen Juristentages, vol 1 (2002) A 76 ff; cf also the comments by M J de Waal, “Comparative Succession Law”, in M Reimann, R Zimmermann (eds), Oxford Handbook of Comparative Law (2006) 1085 f.

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even against his wishes dates back to Roman law. Down to the end of the nineteenth century, the Roman rules were still applicable in those parts of Germany that were governed by the ius commune.3 They were modified and rationalised by the draftsmen of the German Civil Code of 1900 (BGB),4 but the general idea on which they were based remained unaffected. The formulation provided by the BGB was not uncontroversial, either then or later. Predominantly, however, it has been and remains accepted.5 Today, the indefeasible claim of the closest relatives to a share of the estate is, like the principle of freedom of testation, widely taken to be guaranteed by art 14 I 1 of the German Constitution (“Property and the right of inheritance are guaranteed”).6 The present chapter provides an overview of the development of the idea of a right to obtain part of the estate even contrary to the will of the testator. It deserves our attention not only because it is the historical root of the compulsory portion of modern law, but also as a relatively well-documented example of the struggle to find reasonable solutions within the area of tension created by the two principles mentioned above. B. THE DEVELOPMENT OF FREEDOM OF TESTATION The idea of succession contrary to the last will presupposes the recognition of testamentary succession itself. This cannot be taken for granted. Thus, for example, the Germanic laws did not acknowledge the right of a person to dispose of his estate, for the family property was taken to be “caught up

3 B Windscheid and T Kipp, Lehrbuch des Pandektenrechts, 9th edn, vol 3 (1906) 369 ff; H Coing, Europäisches Privatrecht, vol 2 (1989) 628 ff. For an overview of German doctrine during the nineteenth century, cf also J M Ribas-Alba, La desheredación injustificada en derecho romano (1998) 26 ff. 4 In particular, the relatives were only granted a claim against the heir(s) appointed by the testator rather than a share in the estate itself; this is an idea that originated in nineteenth century Prussian and Austrian legal doctrine; cf T Kipp and H Coing, Erbrecht, 14th edn (1990) 53 ff; H Coing, Europäisches Privatrecht vol 2 (n 3) 630 f; “Motive”, in B Mugdan, Die gesammten Materialien zum Bürgerlichen Gesetzbuch für das Deutsche Reich, vol 5 (1899) 202 ff. For a detailed analysis of the legislative history of the provisions contained in the BGB, see H-G Mertens, Die Entstehung der Vorschriften des BGB über die gesetzliche Erbfolge und das Pflichtteilsrecht (1970) 81 ff; cf also the overview provided by U Haas, in J von Staudingers Kommentar zum Bürgerlichen Gesetzbuch, 13th edn (1998) Vorbem zu §§ 2303 ff, nn 6 f. 5 Kipp & Coing, Erbrecht (n 4) 55; Staudinger/Haas (n 4) Vorbem zu §§ 2303 ff, n 8; K W Lange, in Münchener Kommentar zum Bürgerlichen Gesetzbuch, 4th edn, vol 9 (2004) § 2303, nn 1 f; Martiny (n 2) at A 61 ff, 79 f. But see, e.g., de Waal (n 2) 1086 with references. 6 See, e.g., G Otte, “Das Pflichtteilsrecht – Verfassungsrechtsprechung und Rechtspolitik” (2002) 202 Archiv für die civilistische Praxis 317 ff; Münchener Kommentar/Lange (n 5) § 2303, nn 3 f.

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with” (verfangen) the sons of the deceased.7 The same idea appears to have prevailed in early Roman law. With the death of the pater familias, as a rule, a “household succession” automatically ensued: the children of the deceased, and his wife, as far as they became sui iuris (i.e. free from paternal or marital power) upon his death, took the place of the deceased as his sui heredes.8 In particular, they acquired his property and were responsible for keeping up the family worship (the sacra familiaria). The succession of the sui heredes was thus, essentially, nothing but the open recognition of a latent kind of co-ownership of the closest relatives in the family property during the lifetime of the deceased: “vivo quoque parente quodammodo domini existimantur”, as Gaius states the position.9 The continued community of the family heirs in the form of a consortium10 entailed the danger that the property might no longer be sufficient to maintain the family. Already by the time of the XII Tables (450 BC) it was therefore recognised that each member of that family community could request its dissolution by means of an actio familiae erciscundae.11 This in turn meant that a farm might be split up so often that the individual parts could no longer be managed profitably.12 Such undesirable consequences could be avoided only by allowing the pater familias to transfer his property to a single heir and by providing in other ways for the remaining members of his household. That could, of course, be done by way of legal acts inter vivos: thus, the brothers of the chosen heir could be emancipated (with the result that they were no longer sui heredes) and his sisters could, by marriage, be transferred into the 7 Kipp & Coing, Erbrecht (n 4) 53; H-R Hagemann, “Erbrecht”, in Handwörterbuch zur deutschen Rechtsgeschichte vol 1 (1971) col 971 ff; R Zimmermann, “Heres Fiduciarius?”, in R Helmholz and R Zimmermann (eds), Itinera Fiduciae (1998) 277. 8 F Wieacker, Hausgenossenschaft und Erbeinsetzung: Über die Anfänge des römischen Testaments (1940) 6 ff; P Voci, Diritto Ereditario Romano, 2nd edn, vol 1 (1967) 3 ff; M Kaser, Das römische Privatrecht, 2nd edn, vol 1 (1971) 91 ff; H Honsell, T Mayer-Maly and W Selb, Römisches Recht (1987) 434 ff (= P Jörs, W Kunkel, L Wenger, Römisches Recht, 4th edn; henceforth: Kunkel/ Honsell); Ribas-Alba, La desheredación injustificada (n 3) 98 ff. For a detailed discussion of the position of the wife see, in the present context, G Heyse, Mulier non debet abire nuda: Das Erbrecht und die Versorgung der Witwe in Rom (1994) 22 ff; J A Crook, “Women in Roman Succession”, in B Rawson (ed), The Family in Ancient Rome (1986) 58 ff. 9 Gai Inst 2.157; Wieacker, Hausgenossenschaft und Erbeinsetzung (n 8) 11 ff; Voci, Diritto Ereditario Romano vol 1 (n 8) 32 ff; Kaser, Das römische Privatrecht vol 1 (n 8) 64; Kunkel/ Honsell (n 8) 435. 10 That consortium of co-heirs was referred to as ercto non cito; cf Gai Inst 3.154a; A Berger, Encyclopedic Dictionary of Roman Law (1953) 409; Voci, Diritto Ereditario Romano vol 1 (n 8) 59 ff; Kaser, Das römische Privatrecht vol 1 (n 8) 99. 11 Gai Inst 4.17a; Gai D 10.2.1 pr; Wieacker, Hausgenossenschaft und Erbeinsetzung (n 8)15 ff; Kaser, Das römische Privatrecht vol 1 (n 8) 100 f. 12 Kaser, Das römische Privatrecht vol 1 (n 8) 93, and the detailed discussion by Wieacker, Hausgenossenschaft und Erbeinsetzung (n 8) 20 ff.

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marital power of their husbands.13 Additionally, however, the pater familias was now granted the power to institute the person, who was supposed to carry on the farm, as his sole heir in a last will. Such wills, whose purpose it was to determine the heir, probably came to be accepted in the second half of the fourth century BC.14 This entailed recognition of the principle of freedom of testation, so characteristic of Roman law,15 for the testator was able to institute not only one of the sons who were in his power but also daughters in his power, emancipated children, or even persons outside his family. In other words: the testator was free to appoint as his heir whomever he wanted. But he had to observe certain forms. Thus, according to the ius civile, the complex ritual of a mancipatio familiae had to be performed, i.e. the transfer of the property by way of mancipation to a kind of trustee.16 In addition, it soon came to be established that the institution of an heir was not only a conceivable, but the central, feature of a last will: its source and foundation.17 The validity of testamentary dispositions was, therefore, dependent upon the fact that an heir had been instituted at the beginning of the testament.18 C. DISINHERITANCE OF SUI UNDER THE IUS CIVILE Another form that had to be observed by the testator takes us to the topic of this chapter: for apart from having to institute an heir (“Titius heres esto”) the testator had also to disinherit those who would normally have been called upon to succeed him (i.e. the sui heredes).19 Sons who were in the testator’s 13 Kaser, Das römische Privatrecht vol 1 (n 8) 94. 14 For the details, see Wieacker, Hausgenossenschaft und Erbeinsetzung (n 8) 25 ff; Kaser, Das römische Privatrecht vol 1 (n 8) 93 f; M Wurm, Apokeryxis, Abdicatio und Exheredatio (1972) 70; M Weber, Römische Agrargeschichte (1891) 67 ff. 15 F Schulz, Principles of Roman Law (1936) 156; Kaser, Das römische Privatrecht vol 1 (n 8) 669; Kunkel/Honsell (n 8) 437. 16 Gai Inst 2.102 ff; F Schulz, Classical Roman Law (1951) 240 ff; F de Zulueta, The Institutes of Gaius, Part II, Commentary (1953) 87 ff; Voci, Diritto Ereditario Romano vol 1 (n 8) 86 ff; idem, 2nd edn, vol 2 (1963) 64 ff; A Watson, The Law of Succession in the Later Roman Republic (1971) 11 ff; Kaser, Das römische Privatrecht vol 1 (n 8), 107 f, 678 ff; Kunkel/Honsell (n 8) at 448 ff; Zimmermann (n 7) at 268 ff. 17 “… velut caput et fundamentum intellegitur totius testamenti heredis institutio”: Gai Inst 2.229. 18 On the (external) formalism of testaments, see Schulz, Classical Roman Law (n 16) 248 ff; Voci, Diritto Ereditario Romano vol 2 (n 16) 110 ff; Kaser, Das römische Privatrecht vol 1 (n 8) 686 ff; Kunkel/Honsell (n 8) 454 f. 19 For this point, and for what follows, see D 28.2; J Inst 3.13; F von Woeß, Das römische Erbrecht und die Erbanwärter (1911) 138 ff; G La Pira, La successione ereditaria intestata contro il testamento in diritto romano (1930) 67 ff, 95 ff, 309 ff; Schulz, Classical Roman Law (n 16) 266 ff; W W Buckland and P Stein, A Text-book of Roman Law from Augustus to Justinian, 3rd edn (1963) 322 ff; Voci, Diritto Ereditario Romano vol 2 (n 16) 634 ff; Watson, Succession (n 16) 40 ff; Kaser, Das römische Privatrecht vol 1 (n 8) 702 ff; Kunkel/Honsell (n 8) 463 f.

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power at the time when the will was made had to be disinherited nominatim (“Seis filius meus exheres esto”)20 while other sui heredes (daughters, grandchildren, the uxor in manu) could be disinherited without their names being mentioned, by way of a general provision (“ceteri omnes exheredes sunto”).21 Failure to mention (“passing over”) a son entailed invalidity of the entire will;22 if other sui heredes were omitted, the will remained valid, but the persons thus passed over became heirs together with the person instituted by the testator.23 If the latter was not among the sui heredes, they received half of the estate, otherwise their intestate share.24 If postumi sui had been omitted (i.e. sui heredes who had been conceived but not yet born at the time when the will was made, or the testator had died), the will was invalid no matter whether the postumus was male or female.25 The ratio and the origin of these strangely differentiated form requirements are controversial. Heredis institutio (institution of heirs) and exheredatio (disinheritance) had probably always belonged together: the command of “heres esto” had to be followed immediately by its antithesis (“exheredes sunto”).26 The latent co-ownership of the closest relatives in the family property, mentioned above,27 may have played a role in this respect.28 The special position of sons in power may have been attributable to their particular importance for carrying on a family farm and for continuing the sacra familiaria. The rules just described, which have come to be known in German by the strange term of formelles Noterbrecht (compulsory heirship in form),29 brought 20 Gai Inst 2.123.127. 21 Gai Inst 2.124.128. 22 Gai Inst 2.123; cf further Epitome Ulpiani 22.14: “Sui heredes instituendi sunt vel exheredandi”; A Sanguinetti, “Considerazioni sull’origine del principio ‘sui heredes instituendi sunt vel exheredandi’” (1993) 59 Studia et Documenta Historiae et Iuris 259 ff. 23 Gai Inst 2.124. 24 For details, see Schulz, Classical Roman Law (n 16) 267 f. 25 Gai Inst 2.130 ff; cf also Epitome Ulpiani 22.18. On the concept of postumus, see Kaser, Das römische Privatrecht vol 1 (n 8) 684 f, 706 f. 26 von Woeß, Das römische Erbrecht (n 19) 159 (“Roman law, from of old, delighted in antitheses”); Wieacker, Hausgenossenschaft und Erbeinsetzung (n 8) 38 (“… the exheres command, formulated antithetically in true Roman fashion”). A different view is taken by L di Lella, Querela inofficiosi testamenti: Contributo allo studio della successione necessaria (1972) 76 ff, 85 ff; but see M Kaser, Das römische Privatrecht, 2nd edn, vol 2 (1975) 610; cf also Watson, Succession (n 16) 41 ff; Sanguinetti (n 22) at 259 ff. 27 Supra, text to n 9. 28 This is a view that has been widely supported since Bartolus (see the references provided by von Woeß, Das römische Erbrecht (n 19) 138 f); but see Schulz, Classical Roman Law (n 16) 268 ff who argues that the rules on praeteritio are based on the very natural desire of the republican lawyers to save the inheritance for the sui. 29 The term Noterbe stands for notwendiger Erbe (compulsory heir); formelles Noterbrecht indicates that the testator had to remember his closest relatives by paying them a purely formal tribute (i.e. the honos institutionis vel exheredationis). The term formelles Noterbrecht is used in opposi-

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about a certain protection of the sui heredes who, if the testator had forgotten to disinherit them, received the estate, or a part of it, against his will.30 Sons, unlike daughters, enjoyed protection against being passed over by mistake as a result of the requirement of having to be mentioned by name.31 In addition, the need for specific disinheritance may have forced the testator to reconsider the consequences of his last will.32

D. PRAETORIAN MODIFICATIONS Roman law rested on two different foundations, i.e. the traditional core of the legal regime prevailing among Roman citizens (ius civile) and the ius honorarium which, as Papinian put it, had been introduced by the praetors in the public interest “adiuvandi vel supplendi vel corrigendi iuris civilis gratia”.33 Thus the succession regime according to the ius civile was modified by a praetorian regime which was referred to as bonorum possessio. Such bonorum possessio could, upon a request which had to be lodged within a certain period of time, be granted to specific persons secundum tabulas testamenti, ab intestato, or contra tabulas testamenti.34 In the present context, bonorum possessio contra tabulas is relevant as supplementing the civilian rules concerning compulsory heirship in form.35 Beneficiaries were, in the first place, the testator’s liberi, i.e. all his descendants, no matter whether they

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tion to materielles Noterbrecht (compulsory heirship in substance), where the testator has to remember his closest relatives in his will by leaving them (the value of) part of his estate. Note that the “compulsory heir in form” did not receive anything under the will, let alone become heir. But also “compulsory heirship in substance” did not necessarily mean that the relative concerned became (co-)heir, i.e. received a share of the estate; under classical law it was sufficient that he received a part of the value of the estate. This changed under Justinian. Cf also Wurm, Apokeryxis, Abdicatio und Exheredatio (n 14) (“… as a matter of fact an obstacle to precipitate acts of disinherison”). von Woeß, Das römische Erbrecht (n 19) 176 f. Cf Kaser, Das römische Privatrecht vol 1(n 8) 703 f (according to whom the idea of the testator being forced to examine all his sui for their suitability to succeed him was only of secondary importance). Pap D 1.1.7.1. For a general discussion, see M Kaser and R Knütel, Römisches Privatrecht, 18th edn (2005) 22 ff. See, e.g., Schulz, Classical Roman Law (n 16) 217 f; Kaser, Das römische Privatrecht vol 1 (n 8) 675 f; Kunkel/Honsell (n 8) 438 f; G S Blázquez, “Reflexiones sobre la bonorum possessio ex testamento ‘cum tabulas et contra tabulas’, y bonorum possessio ab intestato”, in A M Villar (ed), Estudios de derecho romano en memoria de Benito M. Reimundo Yanes (2000) 517 ff. For details, see La Pira, La successione ereditaria intestata (n 19) 320 ff; Buckland & Stein, Textbook of Roman Law (n 19) 324 ff; Voci, Diritto Ereditario Romano vol 2 (n 16) 647 ff; Schulz, Classical Roman Law (n 16) 270 ff; Kaser, Das römische Privatrecht vol 1 (n 8) 707 ff; L Vacca, “In tema di bonorum possessio contra tabulas” (1977) 80 Bolletino dell’Istituto di Diretto romano “V.Scialoia” 159 ff; K-P Müller-Eiselt, Divus Pius Constituit: Kaiserliches Erbrecht (1982) 63 ff; Kunkel/Honsell (n 8) 464 ff.

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were still in his power or whether they had been released from such power by emancipation. If the testator had omitted to mention a son in power, the praetorian rules followed those of the ius civile: the will was invalid with the result that the rules concerning intestate succession were applicable. In all other cases, i.e. where daughters, grandchildren, or emancipated sons were not mentioned in the will and requested bonorum possessio contra tabulas, the praetor invalidated the institutio heredis but left all other testamentary dispositions unaffected. The liberi who had been appointed as heirs (both those in power and those who had been released from power) were, however, allowed to request bonorum possessio contra tabulas in turn since the praetorian edict had become applicable to them as the result of the action of another (i.e. the request to be granted bonorum possessio by the descendants who had been passed over; bonorum possessio commisso per alium edicto).36 This meant that, ultimately, all liberi – those who had been instituted as well as those who had been overlooked for the purposes of express disinheritance – received their (praetorian) intestate share.37 But those who had been instituted without belonging to the descendants (extranei) received nothing; they were removed from the testator’s succession as a result of bonorum possessio contra tabulas.38 If the testator had instituted only extranei as heirs, and if, apart from a daughter, there were no other liberi, that led to the daughter receiving the entire estate. This position was changed by a rescript of the Emperor Antoninus Pius: the daughter who had been passed over was to receive no more under the praetorian rule than under the ius civile, i.e. one half of the estate.39 There was another group of persons that benefited from bonorum possessio contra tabulas: the patrons of freedmen.40 Freedmen always remained in a certain position of dependence vis-à-vis their patron: they had to honour and obey him.41 When they died, they had to leave him at least one half of their estate.42 If a freedman failed to do so, the patron could request to receive that 36 Ulp D 37.4.3.11; Kaser, Das römische Privatrecht vol 1 (n 8) 708; Müller-Eiselt, Divus Pius Constituit (n 35) 63. 37 On the praetorian rules on intestate succession, see Schulz, Classical Roman Law (n 16) 227 ff; Kaser, Das römische Privatrecht vol 1 (n 8) 697; Kunkel/Honsell (n 8) 443 ff. In calculating the share of the liberi it had to be taken into account that disinherisons remained intact (Ulp D 37.4.8 pr; 10.5). 38 Gai Inst 2.125. 39 See the detailed analysis by Müller-Eiselt, Divus Pius Constituit (n 35) 63 ff. 40 La Pira, La successione ereditaria intestata (n 19) 376 ff; Voci, Diritto Ereditario Romano vol 2 (n 16) 740 ff; Schulz, Classical Roman Law (n 16) 273 f; Kaser, Das römische Privatrecht vol 1 (n 8) 708 f; for a detailed discussion, see now C Masi Doria, Bona libertorum: Regimi giuridici e realità sociali (1996) 61 ff, 227 ff. 41 See, e.g., Kaser, Das römische Privatrecht vol 1 (n 8) 298 ff. 42 Gai Inst 3.41; cf also Gai Inst 3.45, concerning the patron’s descendants in the male line.

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share,43 as long as the freedman either had no descendants or had not been succeeded by descendants, and provided he had not promised services to his patron.44 It is here, therefore, that we encounter for the first time the idea of a fixed share of inheritance, i.e. of a compulsory portion (debita portio).45 E. THE QUERELA INOFFICIOSI TESTAMENTI The rules of praetorian succession just described date from the later Republic. Again, however, the relatives enjoyed only limited protection since it remained possible for the testator to disinherit them without cause. Yet in the meantime the social and economic conditions had fundamentally changed. An essentially agrarian society had been turned into an urban culture, and economic life was no longer dominated by farming interests but by commerce and the circulation of capital.46 The last will was bound to lose its function of determining who was to take over the farm and how the other sui heredes were to be provided for.47 The custom to institute a single heir disappeared. At the same time, exheredatio (disinheritance) came increasingly to be regarded as a means of punishing relatives who had behaved improperly.48 Exheredatio non mala mente49 was the exception; to have been disinherited normally meant a blot on the general esteem in which a person was held. Similarly, a will which disinherited close relatives without good reason was regarded as inconsistent with the standard of behaviour expected of a Roman citizen. It was a testamentum inofficiosum, i.e. a will that was not “dutiful” in that the testator had neglected his natural duties vis-à-vis his closest relatives. Such testamenta inofficiosa began to constitute a serious problem when, in the turbulent, final decades of the Republic, generally-accepted moral standards50 broke down, and with them the general consensus as to the acceptable contents of a will. From about the middle of the first century BC, therefore, the court responsible for disputes concerning the law of succes43 44 45 46 47 48

49 50

Gai Inst 3.41. On the choice available to the patron (services or half of the estate), see Paul D 37.14.20. Ulp D 38.2.3.10. For a summary and references, see Kaser, Das römische Privatrecht vol 1 (n 8) 177 ff; T Frank, An Economic Survey of Ancient Rome vol 1 (1959) 1 ff. Kaser, Das römische Privatrecht vol 1 (n 8) 669 f, 704 f; Wurm (n 14) at 70 f. von Woeß, Das römische Erbrecht (n 19) 174 ff; Kaser, Das römische Privatrecht vol 1 (n 8) 704 f; Wurm, Apokeryxis, Abdicatio und Exheredatio (n 14) 70 f; F Longchamps de Bérier, “La buona fede mortis causa? Le disposizioni poenae nomine e la querela inofficiosi testamenti”, in L Garofalo (ed), Il ruolo della buona fede oggettiva nell’esperienza giuridica storica e contemporanea vol 2 (2003) 404 ff. Ulp D 38.2.12.2; cf further Ulp D 28.2.18; Paul D 38.2.47. On which, see Schulz, Principles (n 15) 20 ff; Kaser, Das römische Privatrecht vol 1 (n 8) 180.

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sion51 allowed certain close relatives to lodge a complaint against wills which were not “dutiful”.52 This was the origin of the querela inofficiosi testamenti of classical Roman law which was described in Justinian’s Institutes 2.18 pr in the following words: Quia plerumque parentes sine causa liberos suos vel exheredant vel omittunt, inductum est, ut de inofficioso testamento agere possunt liberi, qui queruntur aut inique se exheredatos aut inique praeteritos, hoc colore, quasi non sanae mentis fuerunt, cum testamentum ordinarent.53

The querela could only be brought by persons who, but for the testament, would have succeeded to the deceased’s property. These were, in the first place, the descendants, then the parents (including grandparents and great-grandparents)54 and siblings.55 They could request the will to be rescinded, if they had been ignored or formally disinherited by the deceased. But there were two restrictions. First, the act of disinheriting or passing over the relative who lodged a complaint had to appear to be inofficiosum 51 Originally, this was the court of the centumviri (on which, see M Kaser and K Hackl, Das römische Zivilprozessrecht, 2nd edn (1996) 52 ff, Ribas-Alba, La desheredación injustificada (n 3) 144 ff); later, in the course of the principate, the centumviral proceedings were replaced by the ordinary cognitio procedure. 52 Details of the development are controversial; cf von Woeß, Das römische Erbrecht (n 19) 199 ff; Voci, Diritto Ereditario Romano vol 2 (n 16) 670 ff; Watson, Succession (n 16) 62 ff; Kaser, Das römische Privatrecht vol 1 (n 8) 709 ff; C Paulus, “Die Verrechtlichung der Familienbeziehungen in der Zeit der ausgehenden Republik und ihr Einfluß auf die Testierfreiheit” (1994) 111 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (Romanistische Abteilung) 426 ff; Ribas-Alba, La desheredación injustificada (n 3) 175 ff. For a view diverging considerably from the prevailing opinion, see L di Lella, Querela inofficiosi testamenti (n 26) 37 ff; cautiously approved by Kaser, Das römische Privatrecht vol 2 (n 26) 610 f; but see J W Tellegen, The Roman Law of Succession in the Letters of Pliny the Younger vol 1 (1982) 80 ff; J F Gardner, Women in Roman Law and Society (1986) 183 ff; Ribas-Alba, La desheredación injustificada (n 3) 61 ff; A J Zweig, Marcus Tullius Cicero und das Erbrecht in der späten römischen Republik, doctoral thesis Tübingen (2003) 76 ff. The first successful complaint of which we know is recorded in Valerius Maximus, Memorabilia 7.7.2 for the year 52 BC 53 “Heads of family often disinherit or omit their children without good reason. Those aggrieved at being unfairly cut out or passed over are allowed the complaint of an irresponsible will. The form of this is that the balance of the testator’s mind was disturbed when he made his will” (transl P Birks and G McLeod, Justinian’s Institutes (1987) 79). 54 Ulp D 5.2.1; that grandparents and great-grandparents were included follows from Gai D 50.16.51. 55 See, most recently, A F de Buján, “La legitimacion de los parientes colaterales privilegiados en la impugnacion del testamento inoficioso” (1989) 55 Studia et Documenta Historiae et Iuris 98 ff; Ribas-Alba, La desheredación injustificada (n 3) 221 ff. Cognates beyond the degree of brother are counselled by Ulpian not to trouble themselves with useless expense since they are not in a position to succeed: Ulp D 5.2.1. For the widow, the querela inofficiosi had hardly any practical relevance in view of the fact that the manus-marriage had all but disappeared by the time of the principate; Kaser, Das römische Privatrecht vol 1 (n 8) 323 f; Heyse, Mulier non debet abire nuda (n 8) 29 f. For the later republic, see A Watson, The Law of Persons in the Later Roman Republic (1967) 25.

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(undutiful). Determination of this issue was left to the discretion of court; there was no established catalogue of reasons why a person might be disinherited or overlooked.56 The necessity of having to specify, case by case, what was in conformity with the generally accepted mores left the rhetoricians who appeared before the court considerable room for display of their talents.57 Of rhetorical origin was also, probably, the argument – incorrect in law – that the testator could not have been of sound mind when he made the will (this was the so-called color insaniae).58 For if the testator had indeed been of unsound mind, the will would have been invalid and would not have required to be rescinded: “… recte quidem fecit testamentum, sed non officio pietatis” is how Marcianus describes the position.59 Secondly, a last will was not inofficiosum, and the querela, therefore, remained unsuccessful, if the testator had left those of his relatives who were entitled to bring the querela at least a certain minimum amount. This minimum was fixed, possibly following the example of the lex Falcidia,60 at a quarter of the intestate share.61 Thus, if the testator had two children, who would have inherited one half of the estate according to the rules of intestate succession, each of them could get the will rescinded if he had not received 56 For casuistry from imperial times, see C 3.28.11.12.18-20.23.25; cf also Wurm, Apokeryxis, Abdicatio und Exheredatio (n 14) 73 and, on the constitutions of Diocletian (C 3.28.18-20.23 and 25) O E Tellegen-Couperus, Testamentary Succession in the Constitutions of Diocletian (1982) 157 ff. 57 It is widely assumed that rhetoricians had considerable influence on the development of the querela; cf von Woeß, Das römische Erbrecht (n 19) 78 ff; Schulz, Classical Roman Law (n 16) 277 f; Wurm, Apokeryxis, Abdicatio und Exheredatio (n 14) 72 ff; Kaser, Das römische Privatrecht vol 1 (n 8) 710; Kunkel/Honsell (n 8) 465. Cf also A Bürge, Römisches Privatrecht (1999) 70, who, in the present context, refers to “an unstructured palaver about all and sundry”. 58 For unsympathetic comment, see Schulz, Classical Roman Law (n 16) 277: “These people [i.e. the virtuosi of rhetoric] on principle did not call things by their right names; they were trained to exaggerate, to distort, and to confuse”; and he quotes Aulus Gellius with the following words: “Rhetori concessum est sententiis uti falsis, audacibus, versutis, subdolis, captiosis, si veri modo similes sint et possint movendos hominum animos qualcumque astu inrepere”. Schulz adds: “The lawyers, however, cannot have been influenced by such rhetorical stuff” and, therefore, assumes that all texts in the Digest, where the color insaniae appears, must be interpolated (“… in postclassical times the baneful weed of rhetoric crept into the classical writings”). According to Kaser, Das römische Privatrecht vol 1 (n 8) 710 the lawyers took over the rhetorical argument by introducing the fiction that the testator had been of unsound mind when he made dispositions leaving out his closest relatives; cf Zweig, Marcus Tullius Cicero (n 52) 74 (“… a thin line, from a legal point of view”). On the color insaniae, see most recently, Ribas-Alba, La desheredación injustificada (n 3) 182 ff; Longchamps de Bérier (n 48) at 408 ff. 59 Marci D 5.2.2 (” … the will was correctly made but without due regard for natural claims”); cf also J Inst 2.18 pr. 60 On which, see Kaser, Das römische Privatrecht vol 1 (n 8) 756 f; Kunkel/Honsell (n 8) 495 f; Paulus (n 52) at 428 ff. On the relationship between lex Falcidia and querela inofficiosi testamenti cf also M Hennig, Die lex Falcidia und das Erbrecht des BGB (1999) 25 ff. 61 Plinius, Epistulae 5.1.9 (on which see Tellegen, Pliny (n 52) 80 ff); Ulp D 5.2.8.6; J Inst 2.18.6.

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at least one eighth of the value of the estate.62 The querela (which was subject to a limitation period of five years)63 was a very peculiar remedy in that it led to the will being invalidated64 with the result that whoever had successfully brought it received his full intestate share rather than merely a quarter of it. Since a person belonging to the upper echelons of Roman society did not like to die intestate,65 this was a sanction the preventive effect of which should not be underestimated.66 At the same time a person who unsuccessfully challenged a will as inofficiosum was himself taken to be unworthy to inherit.67 The querela inofficiosi testamenti, which gave rise to a number of difficult legal problems of application,68 protected the testator’s closest relatives against disinheritance without good reason; it constituted a “compulsory heirship in substance” (materielles Noterbrecht) as opposed to the “compulsory heirship in form” discussed above.69 But it was not an obligatory portion in the sense of modern German law: even a person who was disinherited without good reason received nothing unless he challenged the validity of the will; if, on the other hand, he brought the querela successfully, he received four times the minimum amount which the testator was obliged to leave him. F. FURTHER RESTRICTIONS ON DISPOSAL In the course of time steps were taken to fill certain gaps in the protection of the closest relatives. (i) The most important concerned an issue that has not lost its relevance over the centuries: restrictions imposed in the law of succes62 63 64 65

66 67 68

69

Thus, the quarter did not have to be left as a share in the inheritance: J Inst 2.18.6. Ulp D 5.2.18.17; Mod D 5.2.9. Ulp D 5.2.8.16; Paul D 5.2.21.2. See Kaser, Das römische Privatrecht vol 1 (n 8) 669; Paulus (n 52) at 428 (the significance of the testament in ancient Rome cannot be overestimated). But cf also D Daube, Roman Law: Linguistic, Social and Philosophical Aspects (1969) 71 ff and Watson, Succession (n 16) 175 f in opposition to Schulz, Principles (n 15) 156 and Buckland & Stein, Text-book of Roman Law (n 19) 356; on this point, see also Heyse, Mulier non debet abire nuda (n 8) 40 ff. Paulus (n 52) at 426 ff. Ulp D 5.2.8.14. For example: what happens if the person bringing the querela is faced with several testamentary heirs and is only successful against one or some of them; or if only one out of several persons entitled to bring the querela does in fact do so? See, for both situations, Kaser, Das römische Privatrecht vol 1 (n 8) 712 f. On the restitutionary problems arising in cases where the heir who has already paid out the legacies subsequently loses in the querela proceedings, see Müller-Eiselt, Divus Pius Constituit (n 35) 104 ff. Generally, see also the texts collected in D 5.2 and C 3.28 as well as Buckland & Stein, Text-book of Roman Law (n 19) 329; Voci, Diritto Ereditario Romano vol 2 (n 16) 683 ff; Müller-Eiselt, Divus Pius Constituit (n 35) 94 ff; Di Lella, Querela inofficiosi testamenti (n 26) 182 ff; Tellegen-Couperus, Diocletian (n 56) 157 ff. Supra, n 19.

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sion can be circumnavigated by means of dispositions inter vivos. The protection afforded by the querela inofficiosi testamenti was not safely ensconced for as long as the testator was able to reduce the minimum share that was due by making donations while still alive. To prevent this, the Emperor Alexander Severus granted those detrimentally affected a remedy to have such donations rescinded;70 in later Imperial law, this developed into a querela inofficiosae donationis.71 The donation was not rescinded in toto but only in as far as it affected the minimum share.72 For the rest, the querela inofficiosae donationis was modelled on the querela inofficiosi testamenti.73 Two further measures dealt with cases of adoption and were independent of the querela inofficiosi testamenti. (ii) If a father who had three or more sons had allowed one of them to be adopted, a senatus consultum Afinianum from 62 AD granted the latter a quarter share of the estate of his adoptive father. Neither the details of this senatus consultum (e.g. did it only offer protection against being disinherited or also against emancipation?) nor its rationale are clear; in the course of reforming the law of adoption, Justinian removed the quarta Afiniana from our sources, and we only know about it from the enactment abolishing it.74 (iii) But the quarta Afiniana appears to have been a model for the so-called quarta divi Pii,75 which was introduced by a constitution of the Emperor Antoninus Pius, concerning the adoption of minors. While persons alieni iuris were received as children by way of adoptio, the adoption of persons alieni iuris required adrogatio per populum, a formal act before the comitia curiata (later it could also occur by adrogatio per 70 Paul D 31.87.3 f. 71 For details C 3. 29; and see Windscheid & Kipp, Lehrbuch des Pandektenrechts (n 3) at 394 ff; Buckland & Stein, Text-book of Roman Law (n 19) 331; Voci, Diritto Ereditario Romano vol 2 (n 16) 727 ff; Kaser, Das römische Privatrecht vol 1 (n 8) 713; M G Zoz de Biasio, I remedi contro gli atti in frode ai legittimari in diritto romano (1978) 77 ff; O E Tellegen-Couperus, “Some Remarks concerning the Legal Consequences of the querela inofficiosi donationis” (1979) 26 Revue Internationale du Droit d’Antiquité 399 ff; G Wesener, “Vorjustinianische Ansätze zur actio ad supplendam legitimam”, in Festschrift für Arnold Kränzlein (1986) 151 f; A Sanguinetti, Dalla querela alla portio legitima (1996) 15 ff. 72 For rescission in toto, see Paul D 31.87.3 (Alexander Severus); and see Windscheid & Kipp, Lehrbuch des Pandektenrechts (n 3) 397 n 13. The new rules have come down to us in C 3.29.5 (Diocletian and Maximian). On this text see Tellegen-Couperus (n 71) at 403 ff, who takes the view that adjustments are due to Justinian; cf also Zoz de Biasio, I remedi contro gli atti in frode ai legittimari (n 71) 89 ff, 105 ff; Wesener, Festschrift Kränzlein (n 71) 151 f (who puts it in the period after Diocletian but before Justinian). But see now Sanguinetti (n 22) at 15 ff. 73 Windscheid & Kipp, Lehrbuch des Pandektenrechts (n 3) 395 ff; Voci, Diritto Ereditario Romano vol 2 (n 16) 727 ff. 74 C 8.47.10.3; J Inst 3.1.14; and see C G Bergman, Beiträge zum römischen Adoptionsrecht (1911) 76 ff; Buckland & Stein, Text-book of Roman Law (n 19) 327; Kaser, Das römische Privatrecht vol 1 (n 8) 713; Müller-Eiselt, Divus Pius Constituit (n 35) 151. 75 Paul D 38.5.13; Ulp D 5.2.8.15; 10.2.2.1.

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rescriptum principis).76 Antoninus Pius extended the range of persons available for adoption by means of adrogatio to impuberes that were not subject to

paternal power,77 i.e. to persons who had not yet reached the age of majority. If an impubes was adopted and then either disinherited or emancipated (which also meant that, no longer belonging to the sui, he lost his position of heir vis-à-vis his adoptive father), he was granted a statutory minimum share of one quarter of the estate.78 G. JUSTINIAN’S REFORMS UP TO 542 AD The European ius commune was not based on the writings of classical Roman law but on Justinian’s law books, which reflect the legal position of the sixth century AD in the eastern part of the Roman Empire. There, the law schools of Beryt and Constantinople79 had managed to counteract a tendency which is normally described (or rather evaluated) as vulgarisation of Roman law.80 None the less, that vulgarising tendency affected not only the West Roman, but to some extent also the East Roman law. Thus, for instance, the term Falcidia came to be widely used for the quarter of the intestate share that had to be left as a minimum to the closest relatives81 – even though the lex Falcidia had been enacted to preserve a quarter of the estate, unburdened by legacies, to the person who had been appointed heir (no matter whether

76 See, e.g., Kaser, Das römische Privatrecht vol 1 (n 8) 347 ff; Kunkel/Honsell (n 8) 416 ff. 77 Gai Inst 1.102. 78 For details, see Müller-Eiselt, Divus Pius Constituit (n 35) 138 ff; partly differently M G Zoz, “In tema di ‘Quarta Divi Pii’”, in Atti del Seminario Romanistico Gardesano (1980) 251 ff. The dispute concerns the question whether the quarter part was only granted in cases where the adoptive father died intra pubertatem; the sources are predominantly understood in this sense; see Müller-Eiselt, Divus Pius Constituit (n 35) 144 ff. Cf further Windscheid & Kipp, Lehrbuch des Pandektenrechts (n 3) 362; Buckland & Stein, Text-book of Roman Law (n 19) 126; Voci, Diritto Ereditario Romano vol 2 (n 16) 56 f; Kaser, Das römische Privatrecht vol 1 (n 8) 713. 79 On these law schools, and generally on East Roman classicism, see Kaser, Das römische Privatrecht vol 2 (n 26) 32 ff; F Wieacker, Römische Rechtsgeschichte vol 2 (2006, edited posthumously by J G Wolf) 263 ff. 80 On the “vulgarisation” of Roman law during the post-classical period see, by way of overview, Kaser, Das römische Privatrecht vol 2 (n 26) 17 ff; T Mayer-Maly, “Römisches Vulgarrecht”, in Handwörterbuch zur deutschen Rechtsgeschichte vol 4 (1990) cols 1132 ff; W Waldstein and J M Rainer, Römische Rechtsgeschichte, 10th edn (2005) 233 ff; Wieacker, Römische Rechtsgeschichte vol 2 (n 79) 211 ff. 81 F Samper Polo, “La disposición mortis causa en el derecho romano vulgar” (1968) 38 Anuario de historia del derecho espanol 201 ff; Buckland & Stein, Text-book of Roman Law (n 19) 328 f; Kaser, Das römische Privatrecht vol 2 (n 26) 515; Wesener (n 71) at 153; for the development in the West, see F Bauer-Gerland, Das Erbrecht der Lex Romana Burgundionum (1995) 108 ff; A Dilger, “Die Anwendung der Lex Falcidia in Württemberg” (1982) 99 Zeitschrift der SavignyStiftung für Rechtsgeschichte (Romanistische Abteilung) 335 ff.

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that person was a relative or not).82 Moreover, the querela inofficiosi testamenti tended to be amalgamated83 with the hereditatis petitio (i.e. the normal action available to the heir).84 Mainly, however, the Roman rules concerning compulsory heirship were changed by Justinian’s reforms. These reforms, at first, only related to a number of individual issues, particularly the three described below. (i) The rules concerning “compulsory heirship in substance” were peculiar in that those who would have been heirs under the rules of intestate succession had to be left the value of at least one quarter of their intestate share. If this did not happen, and if the persons concerned successfully brought the querela inofficiosi testamenti, they received four times that minimum amount.85 Today, that is sometimes seen as betraying a lack of legal logic.86 Indeed, Justinian may also have taken that view, for he dispensed with the invalidation of the will and confined those who had been left less than the minimum amount to an action to have their share supplemented (actio ad supplendam legitimam).87 The will thus remained valid, even if in a modified form: a result which was in tune with the general inclination of Roman jurists (reinforced by Christian influence)88 to regulate all issues concerning the law of succession as far as possible in accordance with the will of the deceased (favor testamenti). But the actio ad supplendam legitimam was only available in cases where there was something to be supplemented, i.e. where the deceased had left at least something to those who would have been his intestate heirs. The action thus avoided the harshness that could result from the fact that it might be difficult to assess and determine exactly the value of one quarter of the intestate share of the relative concerned. For cases where the testator left nothing to the intestate heirs, the querela inofficiosi testamenti, and its legal consequence of 82 See Voci, Diritto Ereditario Romano vol 2 (n 16) 755 ff; Kaser, Das römische Privatrecht vol 1 (n 8) 756 f; Kunkel/Honsell (n 8) 495 f; for a detailed discussion, see D Schanbacher, Ratio legis Falcidiae (1995). 83 Voci, Diritto Ereditario Romano vol 2 (n 16) 734 ff; Kaser, Das römische Privatrecht vol 2 (n 26) 516, 518. 84 On which, see Kaser, Das römische Privatrecht vol 1 (n 8) 735 ff; Kunkel/Honsell (n 8) 544 ff. 85 Supra, text following n 68. 86 Kaser, Das römische Privatrecht vol 2 (n 26) 515. 87 C 3.28.30 (528 AD); and see Buckland & Stein, Text-book of Roman Law (n 19) 329; Voci, Diritto Ereditario Romano vol 2 (n 16) 731 f; Kaser, Das römische Privatrecht vol 2 (n 26) 518 f; Kunkel/ Honsell (n 8) 467; Sanguinetti, Dalla querela alla portio legitima (n 71) 104 ff. On the terminology, cf also Wesener (n 71) at 154. 88 B Biondi, Il diritto romano cristiano vol 3 (1954) 327 ff.

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invalidity of the will, remained in place.89 The actio ad supplendam legitimam, incidentally, had pre-Justinianic precursors,90 among them an enactment by the Emperor Constantine allowing the testator to determine that what he left to his closest relatives should, if necessary, be increased to one quarter according to the estimation of a reasonable person (suppletory clause);91 a right of those who had received an insufficient amount to choose between querela inofficisi testamenti and actio ad supplendam legitimam, as documented in Sententiae Pauli;92 and, possibly, the limited effect of the querela inofficiosae donationis.93 (ii) A second important change related to the minimum amount to be left to children: this was raised, if there were up to four children, from one quarter to one third, and if there were more than four children, to one half of the intestate share.94 This enactment may also have been inspired by Christian ideas, in that it served to strengthen the bonds between parents and children.95 (iii) Apart from the “compulsory heirship in substance” the “compulsory heirship in form” continued to exist.96 Here Justinian corrected the “maximum vitium antiquae subtilitatis” by which daughters, unlike sons, could be disinherited without mention of their name (inter ceteros). Daughters now also had to be referred to by name97 and thus came to be protected against being disinherited by mistake.98 89 Kaser, Das römische Privatrecht vol 2 (n 26) 519 criticises the continuing lack of logic that he sees in the fact that a person who had initially been completely left out is ultimately in a better position than someone to whom the testator has left at least something. 90 On which see, in particular, Wesener (n 71) at 419 ff; Sanguinetti, Dalla querela alla portio legitima (n 71) 78 ff. 91 Codex Theodosianus 2.19.4 (361 AD) 92 Pauli Sententiae 4.5.7 (The Sententiae Pauli are a post-classical anthology from various works of the classical jurist Paulus.) This right of choice could have practical importance in cases where the five-year limitation period for the querela (n 63) had lapsed; or because the person who had received less than the minimum amount feared the consequences of being unsuccessful with the querela (n 70): Wesener (n 71) at 150. 93 Supra, n 72. 94 Nov 18.1 (536 AD). Kaser, Das römische Privatrecht vol 2 (n 26) 519 regards this as ill-advised in view of the fact that one out of five children thus received more (i.e. one tenth of the estate) than one out of four children (who only received one twelfth). 95 See the introduction to this enactment (Nov 18 praefatio) and, more generally on the precept, reinforced by Christian ideas, to care for one’s closest relatives, Kaser, Das römische Privatrecht vol 2 (n 26) 514. 96 Supra, n 19. 97 C 6.28.4.6 (531 AD); cf also J Inst 2.13.5. For comment, see Kaser, Das römische Privatrecht vol 2 (n 26) 513 f. 98 The passing over of a descendant, whether born or postumus, invalidated the will under Justinianic law: C 6.28.4.6 in fine; Buckland & Stein, Text-book of Roman Law (n 19) 326; Kaser, Das römische Privatrecht vol 2 (n 26) 514.

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This reform ties in with contemporary efforts to treat women in the same way as men; it also, therefore, probably shows some Christian influence.99 H. THE REFORM OF 542 AD (NOVEL 115) Obviously these reforms (which were supplemented by others)100 were not regarded as sufficient,101 for in 542 AD Justinian subjected the law concerning compulsory heirship to a far-reaching transformation. It can be found in chapters 3 and 4 of Novel 115 and related to the position of descendants and ascendants.102 Descendants were not allowed to disinherit or pass over their ascendants (as far as they would have become heirs ab intestato) without good reason, nor could ascendants pass over or disinherit their descendants (as far as they would have become heirs ab intestato), but they had to institute them as heirs, though not necessarily in respect of one quarter (or one third, or half)103 of their intestate share. For the first time, therefore, there was recognition of the right of the closest relatives to be appointed heirs rather than merely to receive a part of the value of the estate.104 They could only be disinherited (or passed over) if there was good reason. Whether that was the case was now no longer left to the discretion of the court,105 for Novel 115 contained a detailed list of such reasons. In the case of ascendants disinheriting descendants, these included threats to the testator’s life, assault and serious forms of insult, denunciation (except in cases of crimes against the state), sexual intercourse with the testator’s wife, an attempt to prevent the testator from making a will, neglect during a period of mental disease, association with poisoners, leading a disorderly life (concerning daughters and granddaughters), and heresy.106 For descendants disinheriting ascendants there 99 Generally, see B Biondi, Il diritto romano cristiano vol 2 (1952) 209 ff, 339 ff; Kaser, Das römische Privatrecht vol 2 (n 26) 519. 100 Kaser, Das römische Privatrecht vol 2 (n 26) 519 with references. 101 Wieacker, Römische Rechtsgeschichte vol 2 (n 79) 320, as far as the Justinianic legislation following the promulgation of Institutions and Digest is concerned, speaks of an “almost frightening restlessness”. 102 Windscheid & Kipp, Lehrbuch des Pandektenrechts (n 3) 398 ff; von Woeß, Das römische Erbrecht (n 19) 256 ff; La Pira, La successione ereditaria intestata (n 19) 486 ff; Buckland & Stein, Text-book of Roman Law (n 19) 331; Voci, Diritto Ereditario Romano vol 2 (n 16) 738 ff; Kaser, Das römische Privatrecht vol 2 (n 26) 520 ff; Kunkel/Honsell (n 8) 467 f; Sanguinetti, Dalla querela alla portio legitima (n 71) 127 ff. 103 Supra, n 94. 104 Supra, n 53. 105 Supra, n 56. 106 Nov 115, ch 3, paras 1-14; from the 19th century point of view, see the list given by Windscheid & Kipp, Lehrbuch des Pandektenrechts (n 3) 404 f.

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was a similar, though somewhat shorter, list.107 The reason for disinheriting or passing over had to be given in the will,108 and, if contested, had to be proved by the heir whom the testator had appointed.109 An ascendant or descendant who was disinherited or passed over without a good reason being given, or for a reason that was not recognised by chapters 3 or 4 of Novel 115, replaced, as intestate heir, the heir or heirs that had been appointed. Legacies and other dispositions contained in the will remained valid.110 Once again, there is a tendency to invalidate a will only as far as necessary to protect the closest relatives. If the descendants or ascendants (insofar as they were compulsory heirs) had been appointed heirs without receiving one quarter (or a third, or half)111 of the estate, and without one of the legally-recognised reasons for disinheritance being present and stated, they had to avail themselves, as in the past, of the actio ad supplendam legitimam.112 Justinian’s art of legislating, as manifested in Novel 115, has not found many admirers in later centuries.113 Thus, it has been said that the honouring of ascendants and descendants envisaged by the precept that the testator must make them heirs (the so-called honos institutionis) was an anachronism even in the time of Justinian.114 But it is doubtful whether the significance of the enactment is properly appreciated by this consideration.115 Yet it cannot be disputed that the enactment was unclear on a number of points and so was bound to pose very considerable problems for scholars operating within the framework of the ius commune. For example, siblings are not referred to as necessary heirs in Novel 115. Does that mean that their position remained unchanged?116 Did the old rules concerning “compulsory heirship in form” continue to exist, side by side with Novel 115, or had they been abolished 107 Nov 115, ch 4, paras 1-8; Windscheid & Kipp, Lehrbuch des Pandektenrechts (n 3) 405 f. 108 Nov 115, ch 3 pr; ch 4 pr (” … nisi causas, quas enumeravimus, in suis testamentis specialiter nominaverint”). 109 Nov 115, ch 3, para 15; ch 4, para 9. 110 Nov 115, ch 3, para 15; ch 4, para 9. 111 Supra, n 94. 112 Nov 115, ch 5 pr; for details, see Windscheid & Kipp, Lehrbuch des Pandektenrechts (n 3) 399 ff. On the introduction of the actio ad supplendam legitimam, see n 87 above. 113 See the references provided by von Woeß, Das römische Erbrecht (n 19) 258 ff. Generally on the question of the quality of Justinian’s legislation, see Kaser, Das römische Privatrecht vol 2 (n 26) 36 ff. 114 See, e.g., H Dernburg, Pandekten, 5th edn, vol 3 (1897) 309 (para 152 n 2). 115 von Woeß, Das römische Erbrecht (n 19) 261 ff. 116 The question is still controversial today: compare Kunkel/Honsell (n 8) 468 with Kaser, Das römische Privatrecht vol 2 (n 26) 520. In the opinion of the German Imperial Court (Entscheidungen des Reichsgerichts in Zivilsachen (30 June 1885) 14, 187 at 190) the older Roman law was still relevant as far as the requirements and effects of the querela inofficiosi testamenti under the ius commune were concerned; cf also Windscheid & Kipp, Lehrbuch des Pandektenrechts (n 3) 398 n 1a.

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by that enactment?117 And what was the nature of the invalidity envisaged by Novel 115? Was the right given to a compulsory heir, who had not been appointed, a right to have the appointment of the heir rescinded by instituting an action, or was the testator’s disposition void ipso iure?118 Modern scholarship in Roman law assumes that the first alternative was the one envisaged by Justinian.119 The right of the compulsory heir would then have been a remoulded querela inofficiosi testamenti. If that was indeed the case, and if it is further assumed that the old “compulsory heirship in form” was absorbed by Novel 115, that enactment, in spite of its technical deficiencies, is an interesting attempt to readjust the balance between freedom of testation and the reasonable interests of the testator’s closest relatives.120 All in all, Justinian appears to have wanted to strengthen the rights of compulsory heirs (as far as they were descendants or ascendants).121 He did so by using indirect means. For, still, the compulsory heirs were not allotted a compulsory share of the estate. Rather, the testator was made to reflect upon whether he wanted to institute his descendants or ascendants, as far as they would have succeeded him ab intestato. In principle, the legal system expected him to do so. He was able to avoid that only if there was a good reason, expressed in the will, why the heir was unworthy to succeed him.122 But the testator had to be careful, for the heir chosen by him carried the burden of proof. Failure properly to comply with these standards and requirements entailed that the provision containing the appointment of the heir could be invalidated; and that provision, after all, was still “caput et fundamentum totius testamenti”.123 Once, however, the testator had appointed the compulsory heir, the law forgave him any inadvertency which might have resulted in the compulsory heir receiving less than a certain minimum (as a rule, one quarter of his intestate share).

117 Windscheid & Kipp, Lehrbuch des Pandektenrechts (n 3) 410 f; in German pandectist scholarship the terms Additionalsystem and Derogationssystem were used. 118 Windscheid & Kipp, Lehrbuch des Pandektenrechts (n 3) 406 ff; here the terms Inoffiziositätssystem and Nullitätssystem were widely accepted. 119 Kaser, Das römische Privatrecht vol 2 (n 26) 521; Kunkel/Honsell (n 8) 468. 120 von Woeß, Das römische Erbrecht (n 19) 272 ff. 121 von Woeß, Das römische Erbrecht (n 19) 263 ff argues that Hellenistic ideas had some influence in this regard; but Christian motives also may have played a role. 122 Praeterition and exheredation are no longer rights of the testator but “poena ingratitudinis”: Nov 115, ch 4, para 9 in fine; Windscheid & Kipp, Lehrbuch des Pandektenrechts (n 3) 400. 123 For classical law, see supra, n 17; for the law in Justinian’s time, see Kaser, Das römische Privatrecht vol 2 (n 26) 490.

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I. SUPPLEMENTARY RULES The protection of the closest relatives by means of the (remoulded) querela inofficiosi testamenti continued to be supplemented, under Justinian, by the querela inofficiosae donationis; in addition, in the course of the fourth century, a querela inofficiosi dotis124 was added to the arsenal of remedies in acknowledgement of the fact that the legitimate expectations of the closest relatives to receive a certain share of the deceased’s estate could be frustrated not only by donations inter vivos but also by excessive dowries. The legitimate portion of the patron125 also continued to exist, but the part of the estate that had to be left to his patron by a freedman without children was lowered from half to one third.126 That reflects the increasing de-personalisation of the patron/client relationship127 and finds a parallel in the restriction of the right of succession ab intestato of the patron and his relatives in favour of the freedman’s own relatives.128 The quarta divi Pii, which benefited an adoptive son who had not reached the age of majority,129 was also retained under Justinian.130 Also perpetuated (and even generalised) was a rule dating from the fifth century131 and concerning communal civil servants: if they were succeeded by someone who was not a civil servant, a share of one quarter of the estate went to the community. This portio curialis was raised to three quarters, if the communal civil servant had no offspring.132 And finally, there was the so-called quarter of the poor widow.133 Christian-humanitarian motives134 induced Justinian to improve the position of the 124 Codex Theodosianus 2.21.1 (358 AD) (= C 3.30); cf Voci, Diritto Ereditario Romano vol 2 (n 16) 730; Kaser, Das römische Privatrecht vol 2 (n 26) 522. 125 On which, see supra, n 40. 126 C 6.4.4.15-16b (531 AD); J Inst 3.7.3; see Kaser, Das römische Privatrecht vol 2 (n 26) 522 f; Voci, Diritto Ereditario Romano vol 2 (n 16) 753 f. 127 Cf Kaser, Das römische Privatrecht vol 2 (n 26) 137 ff. 128 Cf Kaser, Das römische Privatrecht vol 2 (n 26) 508 f. 129 Supra, text to n 75. 130 Voci, Diritto Ereditario Romano vol 2 (n 16) 56 f; Kaser, Das römische Privatrecht vol 2 (n 26) 523. 131 C 10.35.1 (428 AD); C 5.27.9.2 (530 AD). 132 Nov 38 (536 AD). 133 Nov 53.6 (537 AD); Nov 117.5 (542 AD); the second Novel changed and specified the legal position created by the first in certain respects. For details, see Windscheid & Kipp, Lehrbuch des Pandektenrechts (n 3) 360 ff; Voci, Diritto Ereditario Romano vol 2 (n 16) 57; Kaser, Das römische Privatrecht vol 2 (n 26) 507; R Dannenbring, “Die kwart van die arm weduwee” (1996) 29 THRHR 3 ff; B Beinart, “The Forgotten Widow” 1965/66 Acta Juridica 288 ff; Heyse, Mulier non debet abire nuda (n 8) 33 ff. On the legal position of the widow in the law of succession down to the days of Justinian, and on the question of how she was or could be provided for, see Beinart, Acta Juridica; Crook (n 8) at 59 ff; Heyse, Mulier non debet abire nuda (n 8) 22 ff. 134 See Biondi, Il diritto romano cristiano vol 2 (n 99) 184, 228 f and vol 3 (n 88) 346; Beinart, Acta Juridica (n 133) at 292. Justinian himself points to clementia as the basis of his enactment.

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testator’s surviving wife, insofar as her maintenance was not secured by way of a dowry that would have reverted to her, or by a donation propter nuptias, or by other property, and provided the testator had been wealthy (locuples). Together with up to three children, the widow received one quarter of the estate; if there were more than three children, she received a child’s portion.135 At the same time, however, the share due to the poor widow was not to exceed 100 pounds of gold. Under the ius commune, there was a dispute as to how the widow’s position should be conceptualised: did she become a (co-) heir, or did she merely receive a kind of statutory legacy?136 Today, Justinian’s enactments are understood in the latter sense.137 The claim of the poor widow existed both in cases of intestate succession and where her husband’s will had failed to take it into account.138 This was another feature distinguishing that claim from compulsory heirship in classical law and under Justinian;139 but there was at least a functional correspondence insofar as the claim effectively limited the testator’s freedom to dispose of his property.

135 If the children came from her marriage with the deceased, the widow only received the usufruct of her share: Nov 117.5. 136 See Windscheid & Kipp, Lehrbuch des Pandektenrechts (n 3) 362 n 10; H Coing, Europäisches Privatrecht vol 1 (1985) 605. A further controversy surrounded the question whether the poor widower (“vir inops“) also received a share in the inheritance (Coing 605). Justinian had indeed granted him such a share (Nov 53.6.2) but had subsequently gone back on that decision (Nov 117.5 in fine). 137 Windscheid & Kipp, Lehrbuch des Pandektenrechts (n 3) 362; Kaser, Das römische Privatrecht vol 2 (n 26) 507; Dannenbring (n 133) at 13 ff; Beinart (n 133) at 290 ff; Heyse, Mulier non debet abire nuda (n 8) 35 f; Biondi, Il diritto romano cristiano vol 2 (n 99) 184 (“diritto di successione straordinario”) 138 Nov 53.6; cf, e.g., Windscheid & Kipp, Lehrbuch des Pandektenrechts (n 3) 412 f. 139 On the differences between the quarter of the poor widow and compulsory heirship, but also on their common features, see Dannenbring (n 133) at 8 ff; Beinart (n 133) at 290 ff. The model for the quarter of the poor widow was not the quarter of the intestate share to which the compulsory heir was entitled but the quarter (limited, however, by a ceiling of 100 pounds of gold) that had to be paid in the case of divorce by the guilty husband to a mulier indotata (C 5.17.11.1a-c (533 AD)): Kaser, Das römische Privatrecht vol 2 (n 26) 507. The quarter of the poor widow, as laid down in Nov 53.6 and 117.5, was invoked by a widow in Glazer v Glazer NO 1963 (4) SA 694; in the opinion of the court, however, it had been abrogated by disuse in modern Roman-Dutch law as it prevails in contemporary South Africa (705 f, though only obiter). For critical comment, see Beinart (n 133) at 294 ff, 304 ff; cf also Dannenbring (n 133) at 20 and idem, “Über die Rezeption des englischen Rechts in das südafrikanische römischholländische Recht”, in Studi in orore di Cesare Sanfilippo vol 1 (1982) 147 ff. Forced heirship, as remodelled by Justinian, has been abrogated in South Africa under the influence of English law; see R Zimmermann, Das römisch-holländische Recht in Südafrika (1983) 189 f.

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J. BALANCE SHEET It can hardly be denied that succession contrary to the last will was subject to very complex regulation in Roman law.140 In that respect it was characteristic of the law of succession as a whole, of which Fritz Schulz has stated that it is with mixed feelings that a modern observer contemplates the enormous display of legal ingenuity: “This part of [the] law was highly complicated and to a large extent perplexedly entangled.”141 That was true even of classical law. And here as elsewhere in the law of succession, Justinian’s reforms failed to achieve their aim of simplifying and streamlining the law.142 From its inception in the high Middle Ages, therefore, legal scholarship based on the ius commune was faced with very considerable difficulties in the application of these rules.143 Ultimately this led to a situation where the comments contained in Christian Friedrich Glück’s Commentary on the Pandects, begun in 1797, had to be spread over seven volumes, reaching a total of 2,102 pages;144 and even Bernhard Windscheid, who attempted to synthesise the doctrines of the ius commune in a manner which made them easily applicable in contemporary practice, was compelled to devote no less than eighteen sections of his famous textbook to the subject.145 In another respect, too, the rules in this area are characteristic for the Roman law of succession as a whole. For it is precisely because of their complexity that they constitute a particularly interesting field of research for the legal historian: “The labyrinthian law”, to quote Fritz Schulz once again, “cries out for historical analysis; … all factors in Roman legal evolution are clearly visible”.146 And indeed, the legal development discussed in this chapter reflects changes in social structures, in economic conditions, and in the hierarchy of general values. The development went from family succession to freedom of testation and subsequently led to the establishment of a 140 Schulz, Principles (n 15) 68 even refers to a “hopelessly confused matter” (though inspired mainly by an anti-Justinianic viewpoint). 141 Schulz, Classical Roman Law (n 16) 203. 142 See, again, Schulz, Classical Roman Law (n 16) 204. 143 See, e.g., the problems mentioned above, n 113. For an overview from the point of view of the modern legal historian, see G Wesener, “Remedia der Noterben in der Lehre der Glossatoren und Kommentatoren”, in Festschrift für Hermann Lange (1992) 285 ff and, for the period of the usus modernus, H Coing, “Zur Entwicklung des Pflichtteilsrechtes in der Zeit des 16. bis 18. Jahrhunderts”, in Gedächtnisschrift für Wolfgang Kunkel (1984) 25 ff; and see idem, Europäisches Privatrecht vol 2 (n 3) 610 ff. 144 C F Glück, Ausführliche Erläuterung der Pandecten nach Hellfeld: ein Kommentar (1797 ff), vol 6, 527-580; vol 7, 1-489; vol 35, 76-480; vol 36, 1-454; vol 37, 1-465; vol 38, 1-117; vol 52, 80-200. 145 Windscheid & Kipp, Lehrbuch des Pandektenrechts (n 3) paras 575-593. 146 Schulz, Classical Roman Law (n 16) 204.

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balance between the testator’s freedom of disposition over his property and the “natural claims”147 of his closest relatives to receive at least part of the estate. In the process, Roman lawyers developed a number of interesting ideas. Thus, they protected descendants by means of form requirements. They did not grant relatives a fixed share in the estate but a right to lodge a complaint against the will. The key issue, in this respect, was whether the will was undutiful in the sense of failing to show at least a minimum amount of consideration for the deceased’s closest relatives. The complaint, if successful, invalidated the will or the central dispositions contained within it. A testator who wanted to avoid that fate had to take account of his closest relatives. Justinian even introduced a duty to make them the testator’s heir. For the sake of legal certainty a minimum quota was fixed, based on the intestate share, to which they had to be appointed. An actio ad supplendam legitimam served to protect the testator and his interest in having his will carried out as far as reasonably possible. Justinian also saw that it was necessary to provide for the testator’s widow: her reasonable interest in financial security after her husband’s death had been greatly neglected since the days when manus-marriages had fallen into disuse. The widow was not, however, elevated to the position of (co-)heir but could, as a rule, demand one quarter of the estate by way of statutory legacy. Occasionally (within the patron/client relationship), the Roman jurists even operated with the idea of a fixed share, available against the testator’s will. By developing the querelae inofficiosae donationis and dotis, they also took account of the idea that a testator should not be able to undermine, by inter vivos transactions, the protection granted to his relatives by the law of succession. Men and women increasingly came to be treated alike. Many of the technical details discussed over the previous pages are only of historical interest today. But among the great achievements of Roman jurisprudence is the recognition of two principles which are in conflict with each other: that the testator is free to dispose of his estate (freedom of testation); and that his closest relatives have the right to a share in that estate or in its value. Legal systems which still recognise both principles, or even invest them with constitutional dignity,148 have also taken over from the Roman lawyers the task of establishing a reasonable balance between them.

147 Kipp & Coing, Erbrecht (n 4) 51. 148 Supra, n 6.

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3 Succession Law in Scotland – a Historical Perspective W David H Sellar A. B. C. D. E. F.

INTRODUCTION SUCCESSION TO HERITAGE SUCCESSION TO MOVEABLES THE SUCCESSION (SCOTLAND) ACT 1964 ADOPTED AND ILLEGITIMATE CHILDREN ENGLISH LAW, SCOTS LAW, ROMAN LAW A. INTRODUCTION

This chapter aims to provide a historical context for the present law by setting out the main outlines of the law of succession in Scotland before the groundbreaking changes brought about in 1964 by the Succession (Scotland) Act. Before 1964 much of the law of succession was old, almost immemorially old, and in dire need of reform. This was particularly true of the law of intestate succession.1 The template for the pre-1964 law had been laid down in the Middle Ages, by the fourteenth century at latest. The roots of that earlier succession law lay in the feudal law, largely mediated through England, in the case of succession to land; and in customary law and the practice of the Church, again strongly influenced by England, in the case of moveables.2 Roman law was not a major source, although it was certainly not without influence.3 The terminology of Roman law, in particular, came to be increasingly widely used from the sixteenth century onwards. Some traces of Celtic law survived into the later Scots common law, including the law of succession, but these are not considered further in this chapter.4 1

2 3 4

For the background to the Act, see M C Meston, The Succession (Scotland) Act, 1st edn (1964); for the modern law of succession see M C Meston et al, “Wills and Succession”, in The Laws of Scotland: Stair Memorial Encyclopaedia vol 25 (1989); D R Macdonald, Succession, 3rd edn (2001). Scots law prefers the spelling “moveable” to “movable”. In this paper the term “Roman law” is used broadly to embrace the Civilian legal tradition. See W D H Sellar, “Celtic law and Scots law: survival and integration” (1989) 29 Scottish Studies 1; W D H Sellar, “Juridical acts made in contemplation of death: Scotland 1559-1964” Receuils de la Société Jean Bodin lxi (L’Acte à Cause de Mort, 1993) 159, 160. The trend of recent historical

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The history of the Scots law of succession, then, is one of quite remarkable legal conservatism, rooted in a remote past. Crucially, for over 600 years before the reforms of 1964, there was not one law of succession in Scotland but two, depending on whether the property in question was heritable or moveable. In this respect Scots law was completely unlike Roman law which had as its “foundation-stone” the principle of universal succession.5 In maintaining a division of this type into the twentieth century Scots law lagged far behind most other Western systems, with the conspicuous exception of English law which retained just such a division until the 1925 Administration of Estates Act.6 Stair considers succession in book three, when, following what Archie Campbell has called the “master-plan” of his Institutions, he moves from the constitution and nature of rights to their conveyance or translation from one person to another.7 “Succession to defuncts”, writes Stair, “is the most important title in our law.”8 An earlier passage in book one of the Institutions is also highly relevant to the history of succession. There Stair considers custom or consuetude as a source of Scots law. He distinguishes between recent custom, declared by the Court of Session, and what he terms, “our ancient and immemorial customs, which may be called our common law”.9 These ancient customs include “our primogeniture, and all degrees of succession, our legitim portion of children, communion of goods between husband and wife, and the division thereof at their death, the succession of the nearest agnates, the terces of relicts, the liferent of husbands by the courtesy, [and] the exclusion of deeds on deathbed”. Stair describes these customs as being “anterior to any statute, and not comprehended in any, as being more solemn and sure than those are”. The striking thing about these examples is that they all concern the law of succession. In addition, they are all to be found in Regiam Majestatem, the most important treatise in early Scots law, which probably dates from the first half of the fourteenth century.10 Even more

5 6 7 8 9

10

scholarship has been to emphasise continuity with the Celtic past: see, for example, S Boardman and A Ross (eds), The Exercise of Power in Medieval Scotland c 1200-1500 (2003). B Nicholas, An Introduction to Roman Law (1962) 235. For the history of English law, see generally J H Baker, An Introduction to English Legal History, 4th edn (2002). A H Campbell, The Structure of Stair’s Institutions (David Murray Lecture,1954) 11. Stair 3.4.pr; all references are to D M Walker’s 1981 edition of Stair’s Institutions. Stair 1.1.16; and see W D H Sellar, “Custom as a Source of Law”, in The Laws of Scotland: Stair Memorial Encyclopaedia vol 22 (1987) paras 355-393; also W D H Sellar, “English law as a source [in Stair’s Institutions]”, in D M Walker (ed), Stair Tercentenary Studies (Stair Society vol 33, 1981) 140-150. Regiam Majestatem 2.16, 18, 25-34, 37, 58. For convenience, I have used Lord Cooper’s edition of Regiam Majestatem (Stair Society vol 11, 1947).

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striking, these passages in Regiam are all derived from Glanvill’s great treatise on the Laws and Customs of England, composed in about 1200.11 B. SUCCESSION TO HERITAGE As already noted, for over 600 years until 1964, Scots law had not one law of succession, but two. As Stair puts it, “The channel of succession is with us divided into two currents.”12 Property in Scotland divides into “heritage” and “moveables”, corresponding broadly to the division between “realty” and “personalty” in English law. There was one set of rules for succession to heritage, effectively all land; quite another set for moveables. Succession to heritage – the word is significant – concerned the heir (“the successor in immoveables doth only retain the name of heir, and, therefore, immoveables are called heritable rights”);13 succession to moveables was the province of the executor. One crucial rule affecting succession to land was that it was not permitted to transmit heritage by will. Once again this rule can be traced back to Regiam Majestatem and to Glanvill. Regiam states, “de hereditate vero in ultima voluntate nihil potest disponere, ut predictum est”,14 copying Glanvill’s “de hereditate vero nihil in ultima voluntate disponere potest sicut predictum est”.15 Elsewhere Regiam Majestatem copies Glanvill’s statement that only God can make an heir, not man (“… solus Deus heredem facere potest, non homo”) virtually word for word, “… solus Deus heredem facere potest, et non homo.”16 It remained strict law in Scotland until 1868 that heritage could not be left by will, although over the centuries various devices came to be used to circumvent the prohibition. It is only possible to refer to these briefly here. They might involve the device of surrender and re-grant, that is, surrender of the lands by the vassal into the hands of his feudal superior for a new grant in different form, perhaps reserving the liferent to the original vassal and the fee to his heir; or the use of destinations controlling the succession of the lands in future through a series of heirs, such as heirs male of the original grantee, or heirs bearing his surname. An early example of such a grant is that by King David II to Gillespic Campbell “tenendas et habendas eidem Gillaspic 11 Glanvill, De Legibus et Consuetudinibus Regni Anglie (On the Laws and Customs of the Realm of England) 6 and 7.1.3-5, 18. I have used G D G Hall’s edition of Glanvill (1963). 12 Stair 3.4.pr. 13 Stair 3.4.23. 14 [he may not dispose of any heritage in his last will as has already been said]: Regiam Majestatem (n 10) 2.37. 15 Glanvill (n 11) 7.5. 16 Glanvill (n 11) 7.1; Regiam Majestatem (n 10) 2.20.4.

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heredibus suis et suis assignatis cognomen de Cambell habentibus”.17 Destinations to a succession of heirs eventually evolved into the law of entails, or “tailzies” as it was expressed in Scots, which became a specialised branch of the law on its own.18 A later device was the trust disposition and settlement, notionally entered into inter vivos, but in fact latterly mortis causa and revocable. So successful was this last device that the trust disposition and settlement, or “TD & S”, remains a favoured way of making a will. A significant restriction on the transmission of heritage inter vivos was the law of deathbed, the root of which, like the prohibition on making a will in respect of heritage, is to be found in Regiam Majestatem and Glanvill.19 The object of this law was to prevent a disposal of heritage to the detriment of the legal heir by a grantor who was approaching death and no longer in full possession of his faculties. For an inter vivos grant to be valid the grantor had to be in legitimam potestatem, or, as it was regularly expressed, in liege poustie; “by which”, writes Erskine, “is understood a state of health”.20 Otherwise the grant could be reduced ex capite lecti – on the ground of deathbed. There was a presumption at common law that a grant had been made in liege poustie if the grantor had been seen, after making the grant, going to or coming from kirk (church) or market unaided, both being public places. An Act of 1696 c 4 declared that it was sufficient to repel the objection of deathbed that the grantor had lived for sixty days after executing the deed, even if he had not been to kirk or market during that time. However, a shorter period might suffice if the deceased had been to kirk or market within the sixty days. The law of deathbed was no antiquarian curiosity, but an active area of law well into the nineteenth century, and gave rise to much heart-rending litigation. It was only in 1871 with the Law of Deathbed Abolition (Scotland) Act that it was finally abolished. First and foremost, the rules governing the law of intestate succession to heritage favoured the eldest son.21 Males were preferred to females in every 17 [to have and to hold to the said Gillaspic and his heirs and assignees of the surname of Cambell]. See B Webster (ed), Regesta Regum Scottorum VI: The Acts of David II, 1329-1371 (1982) no 166. 18 G Gretton, “Trusts”, in K Reid and R Zimmermann (eds), A History of Private Law in Scotland (2000) vol 1, 480 at 490 n 60 suggests that the fideicommissum was arguably a major source of the Scottish tailzie. I would suggest, however, that the institution, like much else in early Scottish land law, came from the English Common Law; see A A M Duncan (ed), Regesta Regum Scottorum: The Acts of Robert I 1306-1329 (1988), Introduction, 60-69. 19 Regiam Majestatem (n 10) 2.8.7; Glanvill (n 11) 7.1 (70 and n). 20 Erskine, Inst 3.8.95. In the phrase in liege poustie we may perhaps discern an echo of 13th century Scots pronunciation of French. 21 For the old rules of intestate succession, see, for example, T B Smith, A Short Commentary on the Law of Scotland (1962); W M Gloag and R C Henderson, Introduction to the Law of Scotland, 6th edn, by A D Gibb and N M L Walker (1956); G C H Paton, “Husband and wife: property rights

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degree; and among males in the same degree, the eldest inherited. He was termed the “heir at law” – the heir par excellence. Stair believed that the purpose of this rule of primogeniture was to protect the honour and dignity of families.22 In Roman law, by contrast, throughout its history, primogeniture had no place. When the succession did open to females, they shared the inheritance equally. A Biblical precedent sometimes cited for this rule, not only in Scotland, but elsewhere, was the Old Testament case of the daughters of Zelophehad in the book of Numbers.23 According to Lord MacMillan, Sir Frederick Pollock described this case as “the earliest recorded decision which is still of authority.”24 It is referred to by Stair, and was cited in the “Great Cause” for the Crown of Scotland.25 In Scots law such female co-heirs were termed “heirs portioners”. The rules of intestate succession to heritage allowed for representation at every stage: thus the claim of a granddaughter, the daughter of a predeceasing elder son, trumped that of a younger son. Succession, it was said, should descend whenever it could: and so on the death of the middle of three brothers, it was the younger brother, rather than the elder, who inherited. In this scheme of succession a surviving spouse was not a potential heir. Rather, succession was entirely parentelic, the potential heirs in each parentela being exhausted before the succession opened to an earlier parentela. However, only agnatic parentelas counted, that is, the paternal kin, no matter by which route the heritage had in fact descended. This inequitable rule was firmly fixed by 1600, although there are indications that Scots law, like English law, had earlier followed the rule paterna paternis materna maternis: namely, that heritage which had descended from the paternal side should go to paternal relatives; while heritage which had descended from the mother’s side should go the maternal kin.26 All these rules were true of succession to land in England also. “At the end of Henry III.’s reign [in 1272]”, wrote Maitland, “our common law of inheritance was rapidly assuming its final form”.27 Maitland discerned the following six rules:

22 23 24 25 26

27

and relationships”, and J Irvine Smith, “Succession”, both in An Introduction to Scottish Legal History (Stair Society vol 20, 1958); J Clark, “Succession”, in Green’s Encyclopaedia of Scots Law, 1st edn (1896) vol 12, 2nd edn (1909-1914) vol 11. Stair 3.4.33. Numbers 27.7. H P MacMillan, Law and Other Things (1938) 61. Stair 3.4.9-10; E L G Stones and G G Simpson (eds), Edward I and the Throne of Scotland 1290-1296 (1978) ii, 365 (the opinions of the consulted foreign lawyers). F Pollock and F W Maitland, The History of English Law before the time of Edward I (1895; reissued S F C Milsom, 1968) vol 2, 299-300; for earlier Scots law see Regiam Majestatem (n 10) 2.25, and Alexander (1696) Mor 14,873. Pollock & Maitland, History of English Law vol 2, 260.

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(1) A living descendant excludes his or her own descendants. (2) A dead descendant is represented by his or her own descendants. (3) Males exclude females of equal degree. (4) Among males of equal degree only the eldest inherits. (5) Females of equal degree inherit together as co-heiresses. (6) The rule that a dead descendant is represented by his or her descendants overrides the preference for the male sex, so that a grand-daughter by a dead eldest son will exclude a younger son.

In the Great Cause for the Crown of Scotland at the end of the thirteenth century there was still room for doubt on the question of representation, but by the middle of the following century all the rules listed by Maitland were true of Scots law also. They remained true of Scots law until 1964. There might be some slight variation in these rules in the case of land which had been acquired rather than inherited, that is, by “singular” rather than by “universal” succession. Such acquisitions were known as “conquest”. The stock example of succession to conquest involved three brothers, the middle of whom predeceased the others leaving conquest. In this case it was the elder and not the younger brother who inherited. The notion of conquest was also known in English law at an early date, but soon disappeared. The legal historian Theodore Plucknett noted a case in England where the rules of conquest were invoked “as late as 1203”.28 By contrast, the rules regarding conquest remained part of Scots law until 1874, and were still being litigated over as late as 1917.29 These rules were odd enough, but until 1874 there was a further hurdle to surmount.30 It was essential that the ancestor or relative from whom the claim was derived should have taken sasine of the heritage in question, that is, he should have been “infeft” (enfeoffed) or clothed with the fief.31 This was expressed by the maxim “nulla sasina nulla terra”32 as opposed to the contrary maxim, generally expressed in French, “le mort saisit le vif”.33 Thus if a deceased father had not taken sasine it was necessary to derive the succession to the land from the last person who had done so, perhaps an uncle, a grandfather, or an even more remote relative. In cases where the land had descended through the female line, the vagaries of sasine could result in great unfairness.34 T Plucknett, A Concise History of the Common Law, 5th edn (1956) 527 n 1. Conveyancing (Scotland) Act 1874 s 37; Walker v Walkers Trs 1917 SC 46. Conveyancing (Scotland) Act 1874 s 9. For sasine and infeftment in Scots law, see J M Halliday, “The Tragedy of Sasine” (1965) 10 JR 105; also G L Gretton, “Sasine and Infeftment”, in The Laws of Scotland: Stair Memorial Encyclopaedia vol 18 (1993) paras 87-93. 32 [no sasine, no land]. 33 [the dead gives sasine to the living]. 34 See Anstruther v Anstruther (1836) 14 S 272, considered below.

28 29 30 31

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Although a surviving spouse was not an heir, both widow and widower had rights in the deceased spouse’s heritable estate, known respectively as “terce” and “courtesy”. These rights, together with rights of spouses and children against the deceased’s moveable estate discussed below, have simply been known as “legal rights” in Scots law. They may be regarded as examples of “forced heirship”, although that term has rarely been used in Scots law.35 The widow’s terce was a right to the liferent of a third part of her deceased husband’s heritage, a right corresponding to the “dower” once recognised by English law.36 Until 1924 there was the further requirement that in order for the widow to succeed to her terce – to be “kenned” to her terce, as it was expressed – the husband should have been infeft. Terce was abolished by the Succession (Scotland) Act 1964, although as this was not retrospective, it is conceivable that some widows are still enjoying their terce.37 In England dower was abolished in 1925. The widower’s courtesy was a right not to the liferent of a third but to the liferent of the whole of his wife’s heritable estate. In the case of courtesy, however, there was no requirement to show prior infeftment. There was, however, one further necessary qualification: in order to enjoy courtesy there had to have been a child born of the marriage live and heard to cry. Further survival of the child was not necessary, although in later Scots law, at least, there was the additional requirement that the child, had it survived, should have been its mother’s heir. These extraordinary rules find parallels in both English and Norman law which also knew the institution of courtesy. Just why the child should have been born live and heard to cry was already a matter for learned debate among English lawyers in the thirteenth century.38 In Scotland there was a cause célèbre in 1368 involving courtesy, the issue being whether a child had been born live and heard to cry, in which two noble claimants resorted to trial by battle in front of King David II.39 Sir John Skene waxes eloquent on courtesy in his great dictionary of the older Scots legal tongue, De Verborum Significatione (1597): CURIALITAS, curialitie, curtesie, from the French Curtoise civilitie, gentelnesse, humanitie, for the law of curtesie, is an gentill and favorable ordinance or constitution, granted and observed in this Realme, and nocht universallie keiped, 35 J P Dawson, Gifts and Promises: Continental and American Law Compared (1980) is an extended study of “forced heirship”, but does not consider Scots law. M C Meston, “Succession – rights or discretion?” 1987 JR 1 at 7 writes of “Forced-Share Systems”. 36 J H Baker, An Introduction to English Legal History, 4th edn (2002) 269. 37 Succession (Scotland) Act s 10. 38 Pollock & Maitland, History of English Law (n 26) vol 2, 418. 39 [W] D [H] Sellar, “Courtesy, battle and the brieve of right, 1368 – a story continued”, in [W] D [H] Sellar (ed), Miscellany Two (Stair Society vol 35, 1984) 1.

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or used in uther cuntries, And therefore it is called Curialitas Scotiae, the curtesie of Scotland. And in the laws of England lex Anglie, or the curtesie of England, within the quhilk [which] twa realmes and nane uther this law is in use. That is quhen onie man maries lauchfullie ane wife, and receivis lande and heritage with her: And it happen that he beget with her ane bairne, quha [who] being borne, is heard cryand betwixt foure walles of ane house ...

Skene was clearly fascinated by the requirement that the child be born live and heard to cry: The curtesie hes nocht place quhen na bairne is borne in lauchfull mariage, for it is necessar that ane bairne be borne mail or femaill, quick and liveand: And for probation theirof, he mon [must] be heard cryand, for the curtesie hes place in puero clamante, (or as it is written in sum buikes) brayand, squeiland [squeeling], or loudly cryand ...

In England curtesy, the “curtesy of England” (curialitas Anglie), was abolished in 1925.40 In Scotland, incredibly, courtesy survived, cry and all, until 1964.41 The old law of heritable succession was antiquated and irrational, an extraordinary legal fossil. It was quite impossible to justify. In Clinton v Trefusis42 Lord Kinloch said of the law on courtesy: This is a right of a very peculiar character ... It is governed by rules, of which several rest on little better footing than that it has been so fixed. To apply general principles of equity, or the inferences of analogy, to any deliberation of this right, is wholly alien to its legal character.

In Cuninghame v Cuninghame43 it was pleaded that: There were several specialties in the law of Scotland which differed from the law of most other nations: the division of succession into heritage and conquest was one of these peculiar rules, founded, however, upon no principle that could be discovered, other than the arbitrary will of the law itself.

It was well recognised that the law was inequitable. In the Full Court case of Anstruther v Anstruther in 1836,44 which concerned the technicalities of collation inter heredes (discussed below), the consulted judges (Lord President Hope and five others) looked first to the history of that doctrine before expounding its “fundamental rules”. They then embarked on a lengthy excursus on the unfairness of the law of heritable succession. “In truth,” they 40 Baker, English Legal History (n 36) 271. Baker notes that it survived, however, in equity until 1997. 41 Succession (Scotland) Act s 10. 42 (1869) 8 M 370 at 373. 43 (1770) Mor 14,875. 44 (1836) 14 S 272.

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said, “the common law of feudal succession uniformly resists the intervention of equity to temper or modify its rules.” They gave a number of examples. Suppose a brother dies survived by a sister-german (full sister) and a brother consanguinean (half-brother on the father’s side). If the deceased was infeft, his sister takes the property to the exclusion of the half blood, but if he died uninfeft, the whole estate passes to the half-brother. Or, suppose one of several heirs-portioners dies leaving a child who dies uninfeft, his aunts, the other heirs-portioners, will succeed. However, if the child has been infeft, then that child’s brothers or sisters consanguinean, if any, may inherit, whom failing the child’s father. “What is it”, lament the judges, “that sends the succession into channels so widely different, in these instances, contrary to every feeling of equity, and every principle of natural justice? Nothing but the mere ceremony of passing an infeftment.”45 Another scholarly opinion was delivered in the same case by Lord Medwyn who also looked to the historical background of the doctrine of collation. He believed, probably correctly, that collation had been introduced by the church courts “from considerations of equity ... For the churchmen, in their judicial capacity, were the great masters of equity in those times.”46 C. SUCCESSION TO MOVEABLES The rules of moveable succession, it was generally agreed, left more room for the intervention of equity. Stair writes that, “The law and customs of Scotland have reduced the matter of testaments, and succession in moveables, much nearer to natural equity, and made it shorter and plainer than the Roman law.”47 Two hundred years later Maitland noted that, “the Scottish law of intestate succession to movables has been marvellously unlike that settled by Nov. 118. It has been at once agnatic (refusing to trace through a female ancestor) and parentelic”.48 As in the case of heritage, then, intestate succession to moveables was parentelic, and narrowly confined to the paternal kin, with limited exceptions in favour of the mother and brothers and sisters uterine being introduced in 1855.49 Again, in principle, the surviving spouse was not a potential heir. Beyond that the rules were different.50 Succession went to 45 46 47 48 49

At 287. At 299 ff. Stair 3.8.28. Pollock & Maitland, History of English Law (n 26) vol 2, 361 n 3. Intestate Moveable Succession (Scotland) Act 1855 s 5; see also Intestate Moveable Succession (Scotland) Act 1919. 50 For the older rules, see n 21.

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the “next of kin”. There was no rule of primogeniture and no preference for males: everyone in the same degree of relationship to the deceased shared equally. However, the heir at law, if also one of the next of kin, was required to “collate” – that is, to share his inheritance – if he wished to participate in the moveable succession. This was known as collation inter heredes (collation between the heirs), so called to distinguish it from collation inter liberos (among the children) which might arise in connection with the legal right of legitim.51 Unlike the case with heritage, there was no right of representation in intestate moveable succession at common law: the surviving relatives in the nearest degree alone inherited. Thus, a surviving child would exclude the children of deceased siblings, and uncles or aunts would exclude cousins. This situation was partially remedied by legislation in 1855, and a measure of representation allowed in the case of descendants and brothers and sisters of the deceased.52 But the statute was poorly drafted and much litigation ensued.53 Heirs to moveables under the 1855 statute were known as “heirs in mobilibus” as distinct from “next of kin”. Until 1823 there was the further requirement that confirmation must have been granted, before the moveable estate could pass to the next of kin. In moveable succession, whether testate or intestate, the law required the appointment or “confirmation” of an executor to ingather, administer and distribute the estate. In the Middle Ages, in Scotland as also in England, confirmation of executors was a matter for the Church and its courts. At a Provincial Council at Perth in 1420, it was noted that beyond memory of man “bishops and those holding the jurisdiction of an ordinary have been wont to confirm the testaments and codicils of those who die testate in their respective sees and to appoint executors to those who die intestate”.54 In his seminal article A E Anton notes that the similarities between the Scottish system and the English are “too marked to be accidental”.55 After the Reformation this jurisdiction passed in Scotland to newly erected “commissary” courts which were subject to the Court of Session. Anton comments that: 56 A crisis came in 1560 when the jurisdiction of the spiritual courts was abolished. Reforming zeal might well have led to a clean break with the past, but the ‘natural equity’ and practical convenience of the old system ensured its retention, under secular auspices indeed, but substantially unchanged. 51 52 53 54 55 56

For legitim, see below. Intestate Moveable Succession (Scotland) Act 1855 s 1. For example, Colville’s JF v Nicoll 1914 SC 62 and Adam’s Exx v Maxwell 1921 SC 418. A E Anton, “Medieval Scots executors and the courts spititual” (1955) 67 JR 129 at 131. Anton (n 54) at 153. Anton (n 54) at 153.

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Anton also considers that the position of the executor was too well entrenched by this time to be challenged by “a different and more subtle threat – the ubiquitous Roman law”: 57 The question was rather which characteristics of the Roman law should be applied to the Scottish executor ... Certain characteristics of the Roman heir were applied to the Scottish executor, and the only result was that the latter emerged stronger than ever before and better equipped to meet the needs of the world today.

In the nineteenth century commissary jurisdiction was transferred to the Sheriff courts and the Court of Session, where it remains. The executor continued to ingather the moveable estate until 1964, after which he (or she) became responsible for the entire estate. Scots law recognises “legal rights” in moveable succession also.58 These rights are a restriction on the power of testation, as they apply in testate and intestate moveable succession alike. Originally legal rights in moveables were for the benefit of the widow and children of the deceased. If the deceased died leaving both a widow and children, the widow and the children collectively were entitled to one-third each of the free moveable estate. If there was no widow, the children were entitled to a half; while if there was a widow but no surviving children, the widow took a half. There was no representation. These provisions are among the most ancient in Scots common law. They are to be found in Regiam Majestatem, in a passage which comes virtually word for word from Glanvill: 59 omnes res ejus mobiles in tres partes dividentur aequales, quarum una debetur heredi, secunda uxori; tercia vero reservatur testatori, de qua tercia parte liberam habebit disponendi facultatem. Verum si sine uxore decesserit, medietas sibi reservetur.

The passage in Glanvill is: 60 omnes res eius mobiles in tres partes dividentur equales, quarum una debetur heredi, secunda uxori; tercia vero ipsi reservatur, de qua tercia liberam habebit disponendi facultatem. Verum si sine uxore decesserit, medietas ipsi reservatur. 57 Anton (n 54) at 154. 58 For a historical survey, see J C Gardner, Origin and nature of the legal rights of spouse and children in the Scottish law of succession (1928) (from articles in the Juridical Review in 1927 and 1928). 59 [… all his moveables fall to be divided into three equal parts, of which one goes to his heir, one to his wife and one is reserved to be disponed of by the testator as he pleases. But if at the time of his death he has no wife, one half is reserved to the testator.] Regiam Majestatem (n 10) 2.37; the translation is Lord Cooper’s. 60 [… all his chattels will be divided into three equal parts of which one is due to the heir, and the second to his wife; the third is reserved to himself, and he shall have free power of disposition over this third; but if he dies without leaving a wife, one half is reserved to him.] Glanvill (n 11) 7.5; the translation is G D G Hall’s.

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It will be noted that Cooper’s and Hall’s respective translations61 differ from each other rather more than the original Latin. Neither explains, as Maitland does, and as practice confirms, that the word “heir” in both Glanvill and Regiam was construed as meaning children collectively, although Cooper does notice Sir John Skene’s translation as “bairns” in his vernacular version of the Regiam in 1609.62 These rules disappeared by slow stages from English law, surviving longest in the northern ecclesiastical province of York (until 1692), and in the custom of London (until 1724), but they remain good law in Scotland today. Maitland writes, “Had our temporal lawyers of the thirteenth century cared more than they did about the law of chattels, wife’s part, bairn’s part and dead’s part might at this day be known south of the Tweed.”63 Unlike terce, legal rights in moveables vest by mere survivance. In modern Scots law the widow’s part is known as ius relictae and the children’s part as “legitim”, formerly as “bairns part”. Until 1964 legitim was exigible from a father’s estate only. Until 1855 ius relictae was only due if the marriage had lasted for a year and a day or if a child had been born. The rules appear to be of ancient customary origin, predating the Norman Conquest in England, and to owe nothing to Roman law, despite the description “legitim”. In Scotland a widower was given a commensurate right by statute in 1881, termed ius relicti.64 Legal rights in moveables were preserved by the 1964 Act, but only then was the principle of representation extended to legitim. It will be apparent, then, that the scope for testation during most of the period under consideration was distinctly limited. In strict legal theory, heritage could not be transmitted by will until 1868, while the legal rights of terce and courtesy burdened the succession with liferents. In moveable succession, if the testator was survived by a wife and children, the “dead’s part” – the name given to the portion over which the testator has power of disposal – was limited to one-third of the moveable estate. For much of the period a good part even of that third went to the Church, or to the executors ex officio. It is not surprising, therefore, that much of what would now be regarded as lying at the heart of the law of succession, including the law relating to legacies, is dealt with briefly by the older writers. Stair’s treatment of heritable succession in Walker’s 1981 edition of the Institutions extends from page 653 to page 737; and his treatment of moveable succession from page 737 to 770, of which legacies take only pages 752 to 755.65 Even in Baron 61 62 63 64 65

Given in the footnotes. Pollock & Maitland, History of English Law (n 26) vol 2, 350. Pollock & Maitland vol 2, 355-356. Married Women’s Property Act 1881 s 6. Stair 3.4-3.7 (heritable); 3.8 (moveable).

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Hume’s Lectures, written at the start of the nineteenth century, the treatment of legacies is far shorter than that of settlements and tailzies; it is shorter even than the treatment of deathbed.66 Before the Reformation, as already mentioned, testate succession was pre-eminently a matter for the Church, with jurisdiction after the Reformation moving seamlessly to the commissary courts. Wills were revocable and ambulatory as indeed they still remain. They also nominated executors. Hume writes: “The main substance of a testament – its distinctive and peculiar character – consists in the matter of a nomination of executors.”67 All too little is known about the details of legal doctrine in Scotland regarding moveable succession in medieval times. Unlike the position as regards status – marriage, separation and legitimacy – there was no great body of canon law for the churchmen to turn to. Those presiding in the church courts, and in the later commissary courts, would have been familiar with the ius commune and would certainly have regarded that as a potential source. But they would also have looked to Scottish custom and to natural equity, as Stair suggests.68 Anton’s seminal article must now be read in the light of Reinhard Zimmermann’s “Heres Fiduciarius? Rise and Fall of the Testamentary Executor”, based on the most recent European writing and research.69 The last section in this article is headed “English Common Law”.70 We may amend Zimmermann’s statement that, “The only European country, therefore, where a congenial environment has been retained for the executor is England”, to include Scotland also. That done, however, we may adopt many of his conclusions as being true of Scots law also. In Scotland, as in England, the executor “has changed remarkably little over the centuries”, always allowing for the extension of his role in 1964 to cover the entire succession. In Scotland, as in England, the executor came to be equated with the heir of Roman law in the sense that he could be described as eadem persona cum defuncto. In Scotland, as in England, the executor has come to be regarded as a trustee.71 We can probably also say, as Zimmermann does of England, that in this area of law, at least, Scotland “formed part of the world of a medieval common law that antedates the intellectual recovery of the Digest”.72 66 Hume, Lectures V: the law of legacies takes up sixteen pages as against twenty-seven for deathbed and nearly ninety for settlements and tailzies. 67 Hume, Lectures V, 195. 68 Stair 3.8.28, quoted above. 69 R Zimmermann, “Heres Fiduciarius? Rise and fall of the testamentary executor”, in R Helmholz and R Zimmermann (eds), Itinera Fiduciae: Trust and Treuhand in Historical Perspective (1998) 267. 70 Zimmermann (n 69) at 301-304. 71 For this proposition, once controversial, see Gretton (n 18) 514-516. 72 Zimmermann (n 69) 301; and see M Lupoi, The Origins of the European Legal Order (2000).

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D. THE SUCCESSION (SCOTLAND) ACT 1964 The importance of the 1964 Succession (Scotland) Act can hardly be overestimated. Most of the principal changes introduced by the Act have already been mentioned, but it may be useful to summarise them here. A single system of intestate succession replaced the two-fold system which had existed for centuries. The executor became responsible for the administration of the entire estate, not merely the moveable. The old rules of heritable succession were entirely discarded, as were the legal rights of terce and courtesy. Legal rights in moveables, however, remained, although they were not extended to cover the whole estate, an omission which has led to criticism.73 Representation was introduced in legitim. Further rights, known as “prior rights”, were introduced in favour of a surviving spouse. These rights are extensive and may account for much or all of the deceased’s estate.74 Unlike legal rights, however, prior rights arise only on intestacy. The new statutory rules which determine succession to the estate after prior rights and legal rights have been taken into consideration are similar to the old rules regarding moveable succession, inasmuch as there is no primogeniture and no preference for males. However, they are different in that there is representation throughout; also when the succession opens to ancestral lines, all parentelas are now included on an equal basis, paternal and maternal alike. The 1964 Act also placed the half-blood on the mother’s side on an equal footing with those on the father’s side. A further important change was the recognition of a surviving spouse as a potential heir, postponed to descendants, siblings and parents, but prior to uncles, aunts and grandparents. E. ADOPTED AND ILLEGITIMATE CHILDREN The 1964 Act also admitted adopted children for the first time into the scheme of intestate succession. Adoption was introduced by statute in 1930, but adopted children had to wait until the 1964 Act to obtain a right to succeed to the estates of their adoptive parents.75 The 1964 Act, however, made no provision for illegitimate children: so far as intestate succession was concerned, the illegitimate child had no claim. This situation had long been substantially ameliorated by the early adoption into Scots law of the canon 73 See M C Meston, Succession (Scotland) Act, 1st edn (1964) 35; also Scottish Law Commission, Consultative Memorandum on Intestate Succession and Legal Rights (Scot Law Com Memo No 69, 1986), and Report on Succession (Scot Law Com No 124, 1996) paras 3.15-3.16. 74 Prior rights had precursors in the Intestate Husband’s Estate (Scotland) Acts 1911 to 1959. 75 Adoption of Children (Scotland) Act 1930; Succession (Scotland) Act s 23.

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law rule of legitimation by subsequent marriage. Unlike the English Common Law which notoriously set its face against this doctrine for hundreds of years, the Scottish common law recognised legitimation by subsequent marriage as early as the thirteenth or fourteenth century. In the nineteenth century the place of the doctrine in Scots law was examined with exuberant learning in the Full Court case of Kerr v Martin76 in 1840, a case remarkable for its abundant citation of authority, Roman, canon and Scots. The end result was perhaps not the best advertisement for such impressive consultation: the Court divided seven to six, with the Lord President and the Lord JusticeClerk in the minority. Finally, in 1968, Scots law was amended to allow illegitimate children the same rights of succession in the estates of their parents as legitimate children.77 F. ENGLISH LAW, SCOTS LAW, ROMAN LAW There can be no doubt that the most important influence on the Scots law of succession to heritage during its formative years, amounting to a reception, was the English Common Law. However, by the thirteenth century the Scottish common law was already charting its own independent course: some borrowings, once received, took on a life of their own; others, and this is conspicuously true of intestate succession to heritage, seem to have entered a virtual time warp. The influence of Roman law in this area of succession was distinctly limited. For example, there are few references to Roman law in the first 200 pages of Baron Hume’s treatment of succession. It is only when he comes to discuss confirmation, donatio mortis causa and legacies that Civilian references become more frequent, including nods in the direction of Voet and Vinnius.78 There is an obvious contrast here with Dutch and South African law, as is at once apparent from a glance at Lee’s edition of Grotius’ Inleiding.79 Thus, Lee comments on Grotius II.27 “Of the degrees of relationship” that, “This chapter is pure Roman law”.80 South African law is, in fact, entirely innocent of feudalism and feudal land rights (rather quaintly termed “feuds” by Lee).81 Even in the land law of the Province of Holland in Grotius’ time, feudal law played a relatively minor role. 76 77 78 79 80 81

(1840) 2 D 752. Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 s 2. Hume Lectures V, 201-234. Jurisprudence of Holland by Hugo Grotius, transl R W Lee, 2 vols (1926, 1936). Jurisprudence of Holland vol 2, 178. E.g. Jurisprudence of Holland vol 1, 264: “Hoe leen bekomen werd”, translated (vol 2, 266) as “How feuds are acquired”.

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In medieval Scotland moveable succession lay within the province of the Church and its courts, although inspiration came from a blending of customary law and Christian practice, rather than from the canon law as such. Here again England provides the closest parallel, but in the practice of the English Church and its courts rather than the English Common Law. After the Scottish Reformation in 1560 jurisdiction passed to the commissary courts, and the law of moveable succession joined the mainstream of the Scottish common law. It is difficult to assess the influence of Roman law on the Scots law of succession: it was not negligible, but it certainly did not amount to a reception.82 It is necessary to distinguish between at least three channels of Roman influence. First, as mediated through and altered by the canon law, as in the case of legitimation by subsequent marriage. Second, through the ius commune: Scotland continued to participate in the ius commune throughout the Middle Ages and beyond to a far greater extent than England. And third, through the influence of Justinian’s Digest more directly, as studied, for example, by Scots lawyers at the Dutch universities. It is also necessary to distinguish between the terminology and the substance of Roman law. It was entirely natural that Scots lawyers educated on the Continent should use the terminology of Roman law, but this can be misleading.83 Sometimes native institutions, such as the legal rights in moveables, were dressed up in Roman garb: thus bairns’ part became “legitim”, in imitation of the legitima portio of Roman law, and the widow’s right became known as ius relictae, with the corresponding right of ius relicti being added later by legislation. Sometimes the search for a Roman origin became faintly ridiculous, as when the legal right of courtesy was traced back to a rescript of the Emperor Constantine.84 The origins of the trust in Scots law are still far from clear, but most are agreed that they owe little to the contracts of mandate and deposit,

82 There is a burgeoning literature on the influence of Roman law on Scots law. Following P Stein’s original “The Influence of Roman Law on Scots Law” (1963) 8 JR 205, there have been two collections of essays: R Evans-Jones (ed), The Civil Law Tradition in Scotland (Stair Society Supplementary Series vol 2, 1995) and D L Carey Miller and R Zimmermann (eds), The Civilian Tradition and Scots Law (1997). There have also been several articles, including N R Whitty, “The civilian tradition and debates on Scots law” 1996 TSAR 227, 442; H L MacQueen, “Mixture or muddle? Teaching and research in Scottish legal history” (1997) 5 ZEuP 369; R Evans-Jones, “Receptions of law, mixed legal systems and the myth of the genius of Scots private law” (1998) 114 LQR 228; W D H Sellar, “Scots Law: mixed from the very beginning? A tale of two receptions” (2000) 4 EdinLR 3; W M Gordon, “The Civil Law in Scotland” (2001) 5 EdinLR 130. 83 See D L Carey Miller, “Stair’s property: a Romanist system?” 1995 JR 70. 84 See Hodge v Fraser (1740) Mor 3,119; also Gardner, Legal Rights (n 58) 56, and Stair 2.6.19.

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despite suggestions to that effect by institutional writers.85 The trust has also been compared to the Roman fideicommissum, but so too have other institutions.86 Thus Stair writes, “If there be a nomination of executors, with a material legacy to another, it is fideicommissary succession, to be restored to the universal legatar.”87 Hume, however, although noting Stair’s usage, avoids it himself, preferring to refer to the executor as the dominus of the estate or as a trustee.88 The terminology of fideicommissary succession could also be applied to the heir of entail and, more credibly, to the conditio si testator. The executor was regularly described as eadem persona cum defuncto, but so too, on occasion, was the heir at law. The situation which gave rise to the conditio si institutus in Roman law was bound to arise naturally in most jurisdictions, making it difficult to determine how far the conditio si institutus of modern Scots law derives from Roman law and how far it is of native origin.89 The idea of donation mortis causa may have come from Roman law but the institution has been tailored to meet Scottish needs.90 As late as 1942, in the case of Stuart v Stuart, 91 the question was raised whether the Roman testamentum militare was part of the common law of Scotland. The court found it unnecessary to decide the point, but showed no great enthusiasm for the proposition. Two years later, in a case involving death in a common calamity, Lord Cooper rejected the suggestion that the rules of Roman law should have any place: 92 If the question whether survivance in a common calamity should be determined by evidence or arbitrary presumption had arisen for decision in the later 17th century, Scotland might conceivably have adopted, as being in accordance with equity and expediency, the Roman solution or some modification of it. But Scotland did not do so; and I have the greatest difficulty in entertaining the suggestion that, in relation to a problem which must have arisen on many past occasions, we should now for the first time adopt from Rome or from any other source an entirely new solution; for such a step would in the circumstances partake of judicial legislation. 85 For the origins of the trust, see now Gretton (n 18); also R Burgess, “Thoughts on the origins of the trust in Scots law” 1974 JR 196. Gretton’s views on the mandate and deposit suggestion can be found at 506-507 86 Gretton (n 18) at 490-491; and see D & D of Buccleugh v M of Tweeddale (1677) Mor 2,369. See also chapter 9 below. 87 Stair 3.8.30. 88 Hume, Lectures V, 203, 208. 89 See Chapter 10 below; also W M Gordon, “Roman law and Scots law – the conditiones si sine liberis decesserit” (1969) 14 JR 108, reprinted in W M Gordon, Roman Law, Scots Law and Legal History: Selected Essays (Edinburgh Studies in Law vol 4, 2007) ch 8. 90 The classic exposition of donation mortis causa in modern Scots law was given by Lord President Inglis in Morris v Riddick (1867) 5 M 1036. 91 1942 SC 510. 92 Drummond’s JF v HM Advocate 1944 SC 298 at 301. The rules regarding death in a common calamity in Scots law were altered by the Succession (Scotland) Act 1964 s 31.

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The words “in accordance with equity and expediency”, as Lord Cooper makes clear, are a direct reference to Stair’s Institutions, where after considering the relationship of the Civil, canon and feudal laws to the law of Scotland, Stair writes, “But none of these have with us the authority of law; and therefore are only received according to equity and expediency, secundum bonum et aequum.”93

93 Stair 1.1.16.

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4 Succession Law in South Africa – a Historical Perspective François du Toit A. B. C. D. E.

INTRODUCTION SOUTH AFRICA: A BRIEF LEGAL-POLITICAL HISTORY FREEDOM OF TESTATION AND ITS LIMITATION TESTAMENTARY FORM TESTAMENTARY CONTENT A. INTRODUCTION

South Africa has been gifted a mixed legal system through the coalescence of principally Roman-Dutch law1 – the South African common law to this day – with English law. The modern South African law of succession is but one product of these diverse influences. The significant interaction between Roman-Dutch and English law with regard to succession upon death can justifiably be regarded as a prime example of the interplay between Civil Law and Common Law within South African private law. This chapter highlights such interplay through an exposition of the historical development of some key features of the South African law of succession. B. SOUTH AFRICA: A BRIEF LEGAL-POLITICAL HISTORY In 1652 the Vereenigde Geoctroyeerde Oost-Indische Compagnie (VOC), also known as the Dutch East India Company, took possession of the Cape of Good Hope as a refreshment station en route to the East. 2 The Dutch ruled at the Cape for almost a century and a half until Britain, at war with France and fearing that the French might seize the Cape and hence gain control over the sea route to the East, occupied the Cape between 1795 and 1803. Roman-Dutch law had been introduced as the legal system at the Cape 1 Roman-Dutch law is the legal system developed in the Netherlands in consequence of the reception of Roman law and its synthesis with principally Germanic customary law, feudal law and canon law. Such reception was at its height during the 15th and 16th centuries. 2 This section draws from A B Edwards, The History of South African Law – An Outline (1996) 65-101.

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during the time of Dutch rule, and English legal influence at the Cape during the time of the first occupation was brief and came to an end altogether when Britain entered into a truce with France and agreed to restore most of her recent colonial acquisitions. The Cape was duly returned to the Batavian rulers of the Netherlands. Britain resumed hostilities with France in 1803 and re-occupied the Cape in 1806. In terms of the Articles of Capitulation of 10 and 18 January 1806, the inhabitants of the Cape were guaranteed the preservation of existing rights and privileges, including the retention of Roman-Dutch law. English influence on the legal system existent at the Cape was, however, unavoidable, and such influence was enhanced by an aggressive policy of Anglicisation followed by the British after 1820. The influence of English law occurred primarily with regard to the administration of justice, but the law of the Cape also came to be permeated by English legislation, by some rules of English common law, and by English legal terminology. Farmers (Boers) on the Cape’s eastern frontier were not amenable to British rule and, having been involved in countless clashes with the Xhosa, embarked on the northward Great Trek in 1837. One Trek settled in Natal and introduced Roman-Dutch law as the legal system of the settlement, but when the British occupied Natal in 1845, a legal regime similar to that in the Cape was introduced. The Great Trek also reached the central and northern South African interior where the Boer Republics of the Orange Free State and Transvaal were established, also with Roman-Dutch law. But British imperialism towards the close of the nineteenth century was such that the Boer Republics were soon in Britain’s sight. The Anglo-Boer War (1899-1902) followed, which resulted in British annexation of the Orange Free State and Transvaal. Britain consequently came to hold four colonies in southern Africa – the Cape Colony, Transvaal, the Orange River Colony, and Natal. Two ordinances3 guaranteed the retention of Roman-Dutch law in the newly-acquired colonies, but, as in the Cape and Natal, a penetration of English law into the Civilian legal regime of the former Boer Republics was unavoidable. A national convention in 1908 resulted in the unification of Britain’s four southern African colonies, and the Union of South Africa was formally established on 31 May 1910. Roman-Dutch law, as modified by English law, prevailed as the common law of the Union, as it did when the Republic of South Africa was established on 31 May 1961. South Africa achieved full 3 Administration of Justice Proclamation 14 of 1902, and Ordinance 3 of 1902.

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democratisation in 1994 and the status of Roman-Dutch law as South Africa’s common law remained unaltered in the new constitutional democracy. It is noteworthy that the Republic’s new Constitution orders the courts to apply and, if necessary, to develop the common law in order to give effect to any right contained in the Constitution’s Bill of Rights.4 South African courts are also empowered to develop the rules of the common law to limit any right in the Bill of Rights, provided that such limitation occurs in accordance with Constitutional imperatives.5 The South African law of succession, as already mentioned, is rooted historically in both Roman-Dutch law (and hence Roman law) as well as in English law. This chapter is not intended as a comprehensive exposition of such roots and subsequent developments therefrom. Rather, its aim is to trace the development over time of some key features of the law of succession in order to highlight the hybrid nature of this legal field as a convergence of Roman-Dutch and English law. To this end, the following three features will be analysed from a historical perspective: freedom of testation and its limitation, testamentary form, and testamentary content. C. FREEDOM OF TESTATION AND ITS LIMITATION Freedom of testation is a fundamental principle of the modern South African law of testate succession, and South African testators are accordingly at liberty to effect testamentary dispositions in any manner they deem fit. This freedom is, however, subject to both common law and statutory limitations and so is not completely unfettered in nature. The recognition of freedom of testation as one of the paramount principles of the modern law6 rests on a sound historical footing in that both Roman law and Roman-Dutch law afforded freedom of testamentary disposition to testators,7 as did English law (and does to this day). The establishment and further development of free testamentary disposition in Roman law, as well as its limitation, has been well chronicled and has authoritatively been shown to be the product of a concurrence of social and economic influences.8 Roman law’s recognition of heredis institutio, or the freedom of a paterfamilias to institute a single 4 5 6 7 8

Act 108 of 1996 s 8(3)(a). Section 8(3)(b). For the modern law, see Chapter 5 below. Bydawell v Chapman 1953 (3) SA 514 (A) at 521E-F per Van den Heever JA. M J de Waal, “Law, Society and the Individual: The Limits of Testation”, in D P Visser (ed), Essays on the History of Law (1989) 300; F du Toit, “The Impact of Social and Economic Factors on Freedom of Testation in Roman and Roman-Dutch Law” (1999) 2 Stellenbosch LR 232.

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heir to the family estate from amongst all potential heirs (sui heredes), and the consequent exheredatio (disinheritance) of the other potential heirs, is a particularly significant development in this regard, as the freedom to institute a single heir was principally necessitated by the socio-economic demands on the family estate of an ever-growing family. This freedom to disinherit was, however, open to abuse in a society in the process of modernisation. It was particularly testators’ children (liberi) and other relatives who frequently bore the brunt of spiteful or vengeful disherisons. Declareuil declares in this regard:9 With the decline of the Republic, the invasion of cosmopolitanism and the great advances of democracy, moral standards were lowered and the solidarity of the family … became gradually relaxed. Each man tended to regard his property as subject to his own caprice and disposed of it despotically. The ancient right of the heredis sui and the new right of the liberi were both threatened, and the will became an expression of purely personal whims and sentimentalities.

Urged by custom and social sensibility, measures were introduced to limit the detrimental effect of disherison and to ensure that members of a deceased’s family, particularly the deceased’s close blood relatives, obtained a share of the deceased’s estate. Perhaps the best known of these measures is the querela inofficiosi testamenti – the complaint of the undutiful will wherein a testator had forsaken his duty of piety, by disinheritance of family members. In the case of complete disinheritance, a plaintiff under the querela could claim a quarter of such plaintiff’s intestate share in the deceased estate, the so-called legitimate portion (quarta legitimae partes or portio legitima) or, in case of a shortfall, institute the actio ad supplendam legitimam to claim the remainder of such share.10 Moreover, in later Roman law the economic position of the so-called “poor widow” was secured through the award of a quarter of her deceased husband’s patrimony (quarta uxoria), provided that the deceased left no more than three children. If the deceased left more than three children, the share of the “poor widow” was limited to a child’s portion in the deceased estate.11 The Roman law notion of free testamentary disposition was received into Roman-Dutch law, and testators under the latter system thus enjoyed the freedom of disherison of potential heirs in similar fashion to their Roman predecessors. However, the limitation of this freedom by a claim for a legiti9 J Declareuil, Rome the Law Giver (1927) 291. 10 D 5.2; C 3.28; J Inst 2.18. 11 R Dannenbring, “Die Kwart van die Arm Weduwee” (1966) 1 THRHR 1; B Beinart, “The Forgotten Widow” 1965/1966 Acta Juridica 285.

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mate portion was also received.12 Under Roman-Dutch law the legitimate portion of a deceased’s child amounted to a portion of the child’s intestate share, the extent of such portion being dependent on the number of children left by the deceased. A deceased’s parent was also entitled to a portion of his or her intestate share, but only if such parent would have been an intestate heir, had the deceased in fact died intestate. A deceased’s sibling could receive a portion of his or her intestate share if a turpis persona benefited at the sibling’s expense.13 In Roman-Dutch law the protection afforded in later Roman law to the “poor widow” was greatly obviated by the prevalence of marriages in community of property and the frequent provision by way of antenuptial contracts in marriages concluded out of community of property for benefits to be bestowed on surviving spouses mortis causa.14 Freedom of testation, and its limitation in consequence of the claim for a legitimate portion, were pertinent features of the Roman-Dutch law of succession introduced at the Cape after 1652. But legitimate portion was in conflict with the virtually unlimited freedom of testamentary disposition that prevailed in English law at the time of its introduction to the Cape Colony. No doubt for that reason, legislation passed in the 1870s abolished all the typical Civil Law claims for fixed portions against deceased estates, including the legitimate portion,15 and abolition followed in Natal16 as well as in the new colonies after annexation in 1900.17 However, in what Van der Merwe and Rowland characterise as an “interesting and unexpected development”,18 Chief Justice De Villiers found in Carelse v Estate De Vries19 that the duty of parents to maintain their children passes to their estate on death, with the result that minor children (both legitimate children and children born out of wedlock) enjoy a claim for maintenance against the estate. De Villiers CJ founded his decision in this regard on the Roman-Dutch writer Groenewegen,20 although it was later shown that the decision was based on a misinterpretation of Groenewegen’s view.21 In Glazer v Glazer NO,22 however, the Appellate Division accepted that, this misinterpretation notwithstanding, 12 13 14 15 16 17 18 19 20 21 22

Voet 5.2. Grotius 2.18.8-17. Beinart (n 11) at 294-304. Law of Inheritance Amendment Act 26 of 1873; Succession Act 23 of 1874. Act 7 of 1885. Proclamation 28 of 1902 (Transvaal); Ordinance 18 of 1905 (Orange Free State). N J van der Merwe and C J Rowland, Die Suid-Afrikaanse Erfreg, 5th edn (1987) 625. (1906) 23 SC 532 at 537. De Legibus Abrogatis ad D 34.1.15. H R Hahlo, The South Africa Law of Husband and Wife, 1st edn (1953) 387. 1963 (4) SA 694 (A) at 706H-707A per Steyn CJ.

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the decision in the Carelse case had been followed so extensively as to have become settled law. A minor child’s claim for maintenance against the estate of a deceased parent receives preference over any claim by the deceased’s heirs under a will or on intestacy and consequently constitutes a common law limitation of freedom of testation. A further noteworthy feature of the decision in Glazer v Glazer NO is the finding that the protection afforded under later Roman law to the “poor widow” was probably not received into Roman-Dutch law and, even if so received, would have been abrogated by disuse in South Africa.23 The court also declined the opportunity to create such a claim judicially.24 This left an indigent surviving spouse in a precarious economic position, which position was compounded by the fact that Roman-Dutch law did not recognise the surviving spouse as a competent intestate heir (intestate succession being limited in that legal system to the blood relatives of the deceased).25 Moreover, marriages by antenuptial contract with the exclusion of community of property and profit and loss became fairly commonplace in South Africa in the course of the twentieth century, and such antenuptial contracts rarely made provision for succession or some other settlement to meet the future economic needs of surviving spouses.26 The accrual system introduced under the Matrimonial Property Act in 198427 provided some relief, but was not primarily designed to alleviate the plight of indigent widows and widowers. In 1969 a parliamentary select committee rejected a Family Maintenance Bill which would have allowed a dependant to apply for maintenance to the executor of a deceased spouse. South African law therefore lagged behind most comparable legal systems in failing to accommodate the economic position of the surviving spouse. Even English law, despite its traditional support for free testamentary disposition, made such provision in the Inheritance (Family Provision) Act 1938 and more recently in the Inheritance (Provision for Family and Dependants) Act 1975. Eventually, the South African legislature remedied this deficiency through 23 At 705B-C. 24 At 707D-E. 25 The South African legislature awarded a limited right to surviving spouses to claim on intestacy in terms of the Succession Act 13 of 1934, which right was extended by s 1(1)(c)(i) of the Intestate Succession Act 81 of 1987, in the case where a deceased was survived by a spouse and descendants, to a claim for a child’s portion of the intestate estate or a minimum amount determined by the Minister of Justice by way of notice in the Government Gazette (currently R125 000), whichever amount is the greater. Where a deceased was survived only by a spouse, s 1(1)(a) of the Act awards the entire intestate estate to the surviving spouse. 26 Corbett et al, Succession 44. 27 Act 88 of 1984.

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the Maintenance of Surviving Spouses Act 27 of 1990, which allows the spouse of a marriage dissolved by death a claim against the deceased’s estate for reasonable maintenance needs until death or remarriage, insofar as such needs cannot be met from the spouse’s own means and earnings.28 Since a claim under the Act has the same order of preference as a claim for maintenance by a dependent child of the deceased (discussed above),29 it constitutes a further statutory limitation on freedom of testation in modern South African law. The claim was recently extended by the Constitutional Court to partners in de facto monogamous Muslim marriages,30 but not to permanent life partnerships.31 D. TESTAMENTARY FORM The Romans knew testamentary succession from the earliest times. In fact, the law of testate succession was contained in the Law of the Twelve Tables (Lex Duodecim Tabularum) of 450 BC.32 Roman law was familiar with different wills, each the product of distinct historical development and each featuring its own peculiar form and formalities of execution. By contrast, the will did not appear in Germanic countries until the twelfth century. Its eventual appearance was due largely to the influence of canon law, and early Germanic wills were nothing more than clerical wills. In the course of time the Germanic clerical will made way for a plethora of secular wills, executed in compliance with secular legal prescripts and usually requiring judicial involvement. The reception of Roman law in the Netherlands resulted in Roman wills, particularly of the Justinianic period, being assimilated into Dutch legal practice but without displacing the indigenous wills of the time.33 Roman-Dutch law was therefore equally familiar with different types of will. Moreover, RomanDutch law also recognised a number of privileged wills (as did Roman law), the validity of which was not dependent upon compliance with the usual execution formalities. The will executed at a time of pestilence (testamentum tempore pestis conditum), the military will (testamentum militis), and the will of a parent in favour of a child (testamentum parentis inter liberos) are perhaps the best-known examples of such wills. 28 29 30 31

Section 2(1). Section 2(3)(b). Daniels v Campbell (2004) 7 BCLR 735 (CC). Volks v Robinson (2005) 5 BCLR 446 (CC). The Cape High Court had previously reached the opposite conclusion: see (2004) 6 BCLR 671 (C). 32 Ph J Thomas, Introduction to Roman Law (1986) 153. 33 Van der Merwe & Rowland, Erfreg (n 18)119-120.

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The diverse wills of Roman-Dutch law were introduced at the Cape during the time of Dutch rule. Under British rule, however, legislation based on the English Wills Act 1837 was passed in order to regulate the execution of wills.34 Ordinance 15 of 1845, perhaps the most important legislation in this regard, introduced the so-called statutory or underhand will as the principal will form at the Cape. The underhand will was similarly introduced as the dominant will form in the colonies of Natal,35 the Transvaal36 and the Orange Free State,37 but the formalities prescribed for execution differed from colony to colony and, after unification, from South African province to province. The legislation under discussion did not, however, do away with all the Roman-Dutch wills of the time. For example, the Roman-Dutch notarial will (executed before a notary and two witnesses) was expressly excluded from the legislation with the result that the notarial will remained available in the four colonies and later in the four provinces.38 Moreover, the privileged wills of Roman-Dutch law remained valid under the legislation of the Transvaal and Orange Free State, whereas the military will was the principal privileged will recognised in Natal, while the only privileged wills that survived in terms of Cape legislation were those for which the participation of witnesses was not required in its execution.39 It was undesirable that the formalities of execution in respect of the underhand should vary from colony to colony, and later from province to province. But uniformity was not achieved until the Wills Act 7 of 1953, which came into operation on 1 January 1954. The Act retained the underhand will as the only recognised will form and abolished all existing Roman-Dutch wills with the exception of the soldier’s will, a will largely similar to the military will but deriving its validity from section 3 of the Wills Act. The formalities prescribed by section 2(1)(a) of the Wills Act for the valid execution of a will entail the signing of the will by the testator or a proxy (the so-called amanuensis), its attestation by at least two competent witnesses and, where the testator has signed with a mark or by a proxy, the certification of the will.40 The Wills Act was comprehensively amended in 1992 by the Law of 34 Ordinance 4 of 1843 (Cape), replaced by Ordinance 15 of 1845 (Cape), read together with Act 22 of 1876 (Cape) and Act 3 of 1878 (Cape). 35 Law 2 of 1868. 36 Ordinance 14 of 1903 37 Ordinance 11 of 1904. 38 M M Corbett, H R Hahlo, G Hofmeyr and E Kahn, The Law of Succession in South Africa, 1st edn (1980) 40-41. 39 Corbett, Hahlo, Hofmeyr & Kahn, The Law of Succession 42. 40 Similar formalities are prescribed by s 2(1)(b) of the Wills Act in respect of the amendment of a will.

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Succession Amendment Act,41 which came into operation on 1 October 1992. The 1992 Act repealed section 3 of the Wills Act with the result that the soldier’s will, the last surviving privileged will, disappeared from the modern law. Perhaps the most significant change was the import into the Wills Act of section 2(3) in terms of which the High Court has a so-called power of condonation to order the Master of the High Court to accept a document (or the amendment of a document) as a will (or an amendment of a will) even if all the formalities prescribed for execution (or amendment) have not been complied with. E. TESTAMENTARY CONTENT The vast majority of typical testamentary institutions and provisions recognised under the South African law of testate succession, and frequently included in wills, originate from Roman law and were received as such into Roman-Dutch law. These include, but are not limited to, the fideicommissum (property left to successive beneficiaries, usually to be passed from one to the next upon the fulfilment of a fideicommissary condition), the usufruct (use and enjoyment in property destined for one beneficiary, while ownership in such property is vested in another), accrual (co-beneficiaries share proportionally in a benefit that another beneficiary cannot or will not take), and the massing of estates (consolidation of assets by two or more testators for purposes of joint disposition upon or after the death of the first-dying testator). But there has also been English influence, the testamentary trust being the best-known example of an English legal institution received into the South African law of testate succession. The trust,42 as a typically Common Law institution, developed under the English law of equity, was of course unknown to Roman and Roman-Dutch law and hence did not feature as part of the law of testate succession at the Cape during the period of Dutch rule. However, the British who settled at the Cape in the aftermath of the second British occupation continued with the (to them) familiar practice of incorporating trusts into, amongst others, wills, deeds of gift, antenuptial contracts, and land transfers. The trust therefore became a familiar feature of legal practice at the Cape and later in the greater South Africa. The first reported decision on the trust is said to be that

41 Act 43 of 1992. 42 The exposition on the trust that follows is taken principally from F Du Toit, South African Trust Law: Principles and Practice (2002) 18 and 21-23.

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in Twentyman v Hewitt in 1833.43 A significant milestone in the reception of the trust into South African law was the decision by the Appellate Division in Estate Kemp v McDonald’s Trustee.44 In this case the court, no doubt urged by considerations of legal policy, held that, as the trust institution was not incompatible with the general principles of South African law and as its use had become so firmly rooted in legal practice, it would be impossible to eradicate it.45 In so deciding, South Africa’s highest court declared itself willing to accommodate and give effect to a testamentary disposition cast in the form of a trust. The court, however, emphasised that, despite the reception of the Common Law trust institution, the English law of trusts, premised as it is on the dichotomy between legal and equitable ownership, was not likewise received into South African law, under which, in typical Civilian fashion, only a single form of ownership, namely dominium, is recognised. In a misplaced attempt to accommodate the Common Law trust within the ambit of the South African Roman-Dutch common law tradition, the court in the Kemp case clothed the testamentary trust in the guise of the testamentary fideicommissum, more particularly the fideicommissum purum (a fideicommissum not subject to a fideicommissary condition), equating the trustee of a testamentary trust with a testamentary fiduciary under a fideicommissum purum.46 Subsequently, this approach was much criticised.47 Finally, in Braun v Blann and Botha48 the Appellate Division had the opportunity to consider the correctness of the Kemp decision. After a comprehensive analysis of the issue, the court made a number of instructive points. In the first place, the trust was unknown to Roman and Roman-Dutch law.49 Had the Romans known the institution, the trust could undoubtedly have performed many of the functions performed by the fideicommissum, either by itself or in conjunction with other devices.50 For various reasons this development did not occur. Rather, the trust was developed by the English Court of Chancery from the Germanic Saalman or Treuhand institution and not from the Roman fideicommissum or other institutions of Roman law.51 Secondly, 43 44 45 46 47 48 49 50 51

(1833) 1 Menz 156. 1915 AD 491. 1915 AD 491 at 499 per Innes CJ, 508 per Solomon JA. At 499, 502-503 per Innes CJ, 512-513 per Solomon JA. Estate Watkins-Pitchford v CIR 1955 (2) SA 437 (A) at 460B-D per Van den Heever JA; Greenberg v Estate Greenberg 1955 (3) SA 361 (A) at 368G per Schreiner JA. 1984 (2) SA 850 (A). 1984 (2) SA 850 (A) at 858H-859A per Joubert JA. At 859C. At 859A.

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while the English trust was introduced to South African practice during the nineteenth century, there was no reception of the English dichotomy of legal and equitable ownership. The English conception of equitable ownership distinct from but co-existing with legal ownership, is foreign to South African law.52 Thirdly, it is therefore wrong, both historically and jurisprudentially, to identify the trust with the fideicommissum and to equate a trustee with a fiduciary. In order to avoid confusion these legal concepts should be applied correctly.53 Fourthly, South African courts have evolved and are still in the process of evolving an indigenous law of trusts by adapting the trust idea to the principles of South African law.54 Finally, in its strictly technical sense, the testamentary trust is a legal institution sui generis under South African law – an independent institution governed by its own peculiar legal rules and principles.55 De Waal has shown that, despite the institutional and functional differences between the South African trust and its Common Law counterpart, the South African trust can indeed be labelled a true trust because it exhibits the core elements of duality of interests (in the South African context between the trust estate and the trustee’s private estate and in the English context between the trustee’s and beneficiaries’ proprietary interests), the fiduciary position of the trustee, real subrogation, and the official nature of trusteeship.56 F. CONCLUSION The three topics examined in this chapter – freedom of testation and its limitation, testamentary form, and testamentary content – well illustrate the hybrid nature, not only of the South African law of succession, but of the South African legal system as a whole. The convergence in the law of succession of Civil Law and Common Law constitutes a striking example of the successful synthesis between two diverse legal traditions, and provides a rich field of research for the comparative lawyer.

52 53 54 55 56

At 859E–F. See also Greenberg v Estate Greenberg 1955 3 SA 361 (A) 368G per Schreiner JA. At 859C and 866B. At 859F-G. At 859E. M J de Waal, “The Core Elements of the Trust: Aspects of English, Scottish and South African Trusts Compared” (2000) 117 SALJ 548.

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5 Freedom of Testation and the Ageing Testator J C Sonnekus A. B. C. D. E. (1) (2) (3) (4) F. G. H.

INTRODUCTION PRIORITY OF TESTAMENTARY SUCCESSION LEGITIMATE PORTION DELEGATION CAPACITY TO EXECUTE A WILL Mental incapacity Testators who are aged or infirm Medium other than writing Centralised registration of wills FREEDOM OF ALTERATION OR REVOCATION A ROLE FOR A STATUTORY WILL? CONCLUSION A. INTRODUCTION

In Roman law, there was universal acceptance of the principle embedded in the maxim testamentum est voluntatis nostrae iusta sententia, de eo quod quis post mortem suam fieri velit.1 This presupposed that a person’s legally-recognised last wishes would be honoured after his death even although he himself was no longer there to enforce them. There is, however, little discussion in the Roman texts from which the reason for this honouring of the last will can be ascertained, and even in modern times most lawyers seem to accept without a second thought that the last will of the deceased should be adhered to. Of course, during his lifetime it is accepted that an owner may exercise the entitlements encompassed in ownership (i.e. the ius utendi, fruendi et abutendi). He may, for instance, abandon his assets or donate them to the church. He may of his own free will decide to dump his old washing machine at the municipal dump, or even put his Picasso painting in the dustbin. The value of the property does not affect the legality of the action. The mere 1 Modestinus D 28.1.1. [A will is the legal declaration of a man’s intentions which he wills to be performed after his death.]

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unilateral act of abandonment is sufficient to render the previously-owned object a res derelictus. In South African and Roman-Dutch law,2 it is impossible to abandon an asset for the benefit of another person. By contrast to the ill-defined notions from English or other Common Law systems, it is, for example, impossible for a person whose car has been stolen to abandon the car to the insurance company in exchange for the insurance payment. His action affects only his own assets and does not bear any consequences for the estate of anyone else. The legal position is different if a person donates property to a particular beneficiary, but, unlike abandonment, donation has tax implications. It comes as no surprise to note the often complicated legal rules governing donations.3 A will only takes effect on death – when the testator has already ceased to be a legal subject with entitlements. Despite being a unilateral act, however, a will has consequences for the estates of others. In a system that does not recognise universal succession, it is assumed that the beneficiaries identified by the law acquire, although unbeknownst to them, an immediate right to claim performance from the executor. Goebel argues convincingly that the universal recognition of last wills means that freedom of testation is properly regarded as an aspect of the testator’s personality rights.4 This also explains a number of peculiarities associated with freedom of testation. For example, personality rights are by nature personally attached (persoonlijk verknocht) to the particular natural legal subject,5 and cannot be transferred to another legal subject. Equally, it has been widely accepted that freedom of testation does not entail the freedom to delegate the right to testate to another. The will must reflect the intentions of the testator and not those of someone else. For this very reason all legal systems have rules in place which are designed to discourage fraudulent “passing off” or manipulation of wills. But although the foregoing seems to support Goebel’s thesis that freedom of testation is an aspect of personality rights, it does not offer an explanation for the fact that legal systems carry a minimum age limit for a testator to execute a valid will,6 and the will of a 2 The same rule applies in most continental legal systems. 3 For generations, South African lawyers were left under the impression that donations between husband and wife were “illegal” whereas in reality the common law merely provided for the revocation of an unperfected donation under certain circumstances. The current legislation has removed that fallacious impression: see Matrimonial Property Act 88 of 1984 s 22. 4 J Goebel, Testierfreiheit als Persönlichkeitsrecht (2004) 359 ff. 5 Legal persons like companies, foundations or political parties do not have the ability to execute a last will. They also lack personality rights. 6 In South Africa it is 16: see Wills Act 7 of 1953 s 4. Dutch law is now the same (BW art 4:55) although previously the age requirement was 18. At the other end of the scale, Tunisian law

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person who has not yet attained the prescribed age is void notwithstanding the meticulous adherence to all formal requirements for execution. By contrast to the position for contracts, the abortive attempt by an under-age person to execute a will cannot apparently be rectified even by the assistance of a legal guardian or parent. Nor is subsequent ratification permitted. Yet a person is deemed to be born with his full complement of personality rights. And although a person may indicate that he is prepared to accept a diminished set of entitlements during, for example, a stint as a public figure, the law does not provide for a permanent diminishing of personality rights. From the foregoing it can be deduced that this seemingly ingenious explanation of the principle of freedom of testation does not provide acceptable answers to all questions concerning this basic right of every human being in a free and democratic society to dispose of his assets after his departure over the river Styx in Charon’s boat.7 In the rest of the chapter some aspects of the strange handling of freedom of testation in modern law will be discussed. B. PRIORITY OF TESTAMENTARY SUCCESSION Roman law held last wills in such high esteem that they enjoyed priority over and above the norms of the law of intestate succession. This principle was acknowledged in the well-known adage “nemo pro parte testatus pro parte intestatus decedere potest”,8 with the consequence that the whole of a deceased’s estate was deemed to accrue to that portion which was actually mentioned in the will. Kaser thought that this rule seems to make little sense because the intestate heirs did not succeed even to that part of the estate for which no provision had been made by will.9 But the rule is adequately explained as one fit for rural communities where all emphasis was placed on universal succession. The fragmentation of the family estate amongst a number of beneficiaries was only received at a later period. The principle that the free will of the testator should have prominence was received, albeit in a watered-down version, in most modern legal systems that stipulates for 13 while Moroccan law is satisfied with 12. Some systems entertain the same requirement for testation as for the entering into a contract. See J G Gräler, “Testeervryheid van minderjarigen” (2004) 6567 WPNR 156. 7 According to Roman and Greek mythology, Charon was the ferryman of the dead who took deserving souls over the river Styx: see e.g. H A Guerber, The Myths of Greece and Rome (1907) 103. 8 D 50.17.7 – none can die testate in part and intestate in part. In the Institutes this is formulated as: nequi enim idem ex parte testatus et ex parte intestatus decedere potest: J Inst 2.14.5. 9 M Kaser, Das römische Privatrecht (1975) vol 2 §§ 159.II and 282.

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pride themselves on a Roman legal heritage. In the watered-down formulation, it is acknowledged that the testator only meant to dispose of those assets explicitly mentioned in his will, and that the rest of his estate may devolve according to the law of intestate succession if the rules of accrual do not apply. In Roman law the rules of intestate succession were assumed to correspond with the tacit intentions of the deceased, and in applying these rules of “objective law” the same results were reached in the majority of instances as would have been attained if the deceased had been available to pronounce his last will. This explains the preference for blood relations over strangers in every known system of intestate succession.10 But the exclusion from intestate succession of the surviving spouse11 is more difficult to explain unless it is accepted that testators preferred children and other blood relations to the surviving spouse. In some modern legal systems, at least, it can no longer be assumed that the rules of intestate succession correspond with the tacit last will of the deceased.12 Sometimes even the state is included as an intestate beneficiary notwithstanding that few citizens are inclined to feel benevolence towards the state – especially after lifelong suffering as involuntary taxpayer.13 The inclusion of the state as an intestate beneficiary in, for example, the new Dutch Code can only be explained by the fact that states always try to fill the pockets of the fiscus at the expense of the beneficiaries preferred by the deceased. Goethe, himself a qualified lawyer, drew amusement from the fact that, although a testator may dispose of assets freely, most wills in practice merely reiterate the result that would have followed if the testator’s estate had been governed by the law of intestate succession.14 In that sense the guiding 10 Cf the position under the Schependomsrecht or the Aasdomsrecht which prevailed in Holland during the sixteenth and seventeenth centuries, the underlying principles of which may be found in the current South African Intestate Succession Act 81 of 1987. 11 In South African law the surviving spouse was only elevated to the status of an intestate heir by the Succession Act 13 of 1934, and his or her position safeguarded against relatives in the second and further parantellas by the Intestate Succession Act 81 of 1987. 12 M Puelinckx-Coene, Erfrecht (1996) 13 ff points out that the rules of intestate succession are no longer assumed to be in accord with the tacit last will of the deceased but are better seen as a state tool to promote certain socio-political goals in the redistribution of welfare or assets. 13 See J C Sonnekus, “Nieuw Nederlandse erfrecht deur die loep van ’n hibriede sisteem” 2002:6 Nieuw Erfrecht 81. 14 “Und gewiß bleibt es wunderbar, daß der Mensch das große Vorrecht, nach seinem Tode noch über seine Habe zu disponieren, sehr selten zu Gunsten seiner Lieblinge gebraucht, und, wie es scheint aus Achtung für das Herkommen, nur diejenigen begünstigt, die nach ihm sein Vermögen besitzen würden, wenn er auch selbst keinen Willen hätte”: Die Wahlverwandtschaften 2 Teil, 7 Kap. See also U Diederichsen, “Die ‘Wahlverwandtschaften’ als Werk des Juristen Goethe” (2004) 57 NJW 537 at 544.

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principle of the new Dutch law on intestate succession is aptly formulated: the surviving spouse takes all.15 This corresponds with the true last will of most happily-married couples. But this does not mean that a testator should be denied freedom to dispose of his assets at his pleasure even if that freedom is used to the benefit of his mistress and not of his faithful wife. C. LEGITIMATE PORTION In most legal systems, it is accepted that the testator has some freedom of testation and may appoint the beneficiaries to his estate. The law should, however, make sure that the will reflects the testator’s final intentions. In Thirion v Die Meester16 the court said that, on the one hand, it is accepted that an owner can dispose of assets as he wishes, without regard to motive, whether religious, ideological or even unreasonable. But on the other hand the law will not sanction the results of the unscrupulous exploiter who attempts, for his own gain, to manipulate a testator who is elderly, sick or defenceless. Actual duress and force are not the main problems. A court must weigh up all the relevant circumstances to decide whether the fine line between acceptable closeness and undue influence has been overstepped. In this regard, two different levels of passing-off of provisions that do not in reality convey the last will of the testator may be discerned. In the above case, the court was concerned with the stability of the testator’s mood during the execution of his “will”, which, though not complying with all the formal requirements for execution, could be condoned by the court under section 2(3) of the Wills Act 7 of 1953. On another level, the retention of a fixed claim for a legitimate portion of the testator’s estate also encompasses a serious deviation from his free last will. Favor testamenti stands in stark contrast to solus Deus heredem facere potest, which became in Dutch “een erfgenaam wordt geboren en niet gekoren”.17 15 M J A van Mourik, “De meeslepende avonturen van de langstlevende echtgenoot” (1997) 72 Nederlands Juristenblad 839; A Verbeke, “De legitieme ontbloot of dood? Leve de echtgenoot!” 2002 Ars Notariatus 59; M J A van Mourik, “De meeslepende avonturen van de langstlevende echtgenoot (V en slot)” (2003) 6516 WPNR 8 ff; J C Sonnekus, “The new Dutch code on succession as evaluated through the eyes of a hybrid legal system” (2005) 13 ZEuP 71. 16 2001 (4) SA 1078 (T) at 1091I per Van der Westhuizen R. The court added (at 1093C) that the question was whether the duress and coercion were sufficient to displace the testator’s own will. That would be the case if the testator was manipulated to accept an idea as his own without realising that it was in reality the will of the manipulator. In the event the court held that no evidence had been presented to show that the testator was unduly influenced or so unstable that his freedom to testate was curtailed. See also M C Schoeman-Malan, “Onbehoorlike beïnvloeding: testeerbevoegdheid versus testeervryheid” (2002) 35 De Jure 333. 17 An heir is born, not chosen.

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A last aftermath of legitimate portion is retained in most of continental Europe’s legal systems under one guise or another.18 The consequential inroad on freedom of testation is justified as a means of ensuring that parents honour their liabilities as breadwinner for the maintenance needs of descendants. In a case decided in 1994, the Supreme Court of Canada disregarded explicit testamentary provision in order to allocate a third of the assets in question to a son whom the testator had deliberately excluded from his will.19 The British Columbia statute on which the decision was based guarantees the rights of relatives to lay claim to that portion of the testator’s estate that “morally” belongs to them,20 and this thoroughly outdated premise has even outlived the introduction of the latest civil code in the Netherlands.21 The premise that the previous generation owes it to the next generation to pass on a substantial part of its estate was perhaps applicable in a medieval era without the formulation and recognition of individual rights of children or further descendants against the ancestor responsible for their maintenance. Modern law has long since recognised that the counterpart of the right of children for maintenance is an obligation to provide such maintenance. This right is enforceable against the parent or his estate, but may even found a claim against a third party who negligently caused a parent’s death and in so doing deprived the child of his maintenance. This way it is unnecessary to provide for a claim by the dead parent’s estate against the person responsible for the death merely in order to allow the children to claim in turn from the 18 In the parts of northern France and Belgium that were governed by the law of succession of Zutphen (droit coutumier), the custom of the reservé is still maintained. It differs from the legitimate portion insofar as it is supposed to safeguard the family’s interest in immovable property. The law of Holland never applied the right to a reserve, but it still recognises the dependants’ rights to a legitimate portion much on the same level as the German Pflichtteil. See M Coene et al (eds), De Erfrechtelijke Reserve in Vraag Gesteld: Examen Critique de la Réserve Successorale part I Rechtsvergelijking (1997). For a comparative discussion of the South African position, see J C Sonnekus, “Verlengde onderhoudsaansprake en volwasse selfversorging in ’n reserwelose Suid-Afrikaanse reg”, in M Coene et al (eds), De Erfrechtelijke Reserve 307; J C Sonnekus, “Boedelverdeling – billikheid jeens erflater én verwante?” (1997) 34 TPR 5. 19 Tataryn v Tataryn Estate 1994 2 SCR 807. The court cautioned, however, that a will is the exercise by the testator of his freedom to dispose of his property and is not to be interfered with lightly. Under the statute, testamentary autonomy is not removed but merely limited. 20 Wills Variation Act 1979 s 2(1): “Notwithstanding any law or statute to the contrary, if a testator dies leaving a will which does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the testator’s wife, husband or children, the court may, in its discretion, in an action by or on behalf of the wife, husband or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the estate of the testator for the wife, husband or children.” See H M Sasse, “De legitieme van afstammelinge” (1995) 6171 WPNR 166. 21 See BW art 4:63-92; T J Mellema-Kranenburg, De Legitieme Portie (1988) 144; S Perrick, “Het erfrecht: een kwestie van politiek” (1992) 6041 WPNR 214.

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estate; and this way too the administration of the estate is expedited. As soon as it is recognised that the modern-day child no longer depends for maintenance on a claim for legitimate portion, it becomes unjustifiable to retain legitimate portion as part of the law of succession. Otherwise even the proverbial millionaire would be able to make a claim. In any event, the modern welfare state will in most instances provide a guaranteed minimum maintenance to all in need. This implies that nobody really needs a share of legitimate portion in order to cover the costs of maintenance. In this regard South African law has benefitted enormously from English influence during the late nineteenth century.22 At the height of laissez faire it was accepted that every person has almost absolute freedom of testation. The norm of the wellknown parable from the New Testament, according to which the younger son could, even while his father was alive, claim “his part” of the estate in order to spend it at leisure, has today lost all significance.23 There is no reason why anybody should be entitled to lay claim to the estate of another merely by birthright. Despite its obvious attractions, however, freedom of testation has never been applied absolutely. Thus, although bequests can be subjected to conditions, the law will consider some conditions as pro non scripto if they contravene the norms of the boni mores.24 Or again, although a father may bequeath his assets to his secretary, the norms of succession only apply to the free residue of his estate after all liabilities have been fulfilled, and any maintenance claim by his widow25 or children must, accordingly, be met before the law of succession can come into play. The difference from a legitimate portion or legal reserve, as applied in German, Dutch, Belgium or Scots law, lies in the fact that the claim for maintenance must be proven and justified. So if the children are no longer dependants or the widow is able to maintain herself adequately from her own means thanks to her winning ticket in the latest lottery draw, then there are no proven liabilities for outstanding future maintenance claims against the estate and the secretary can take her bequest unhindered. In this respect South African law honours the principle of freedom of testation. This approach makes sense to those reluctant to pay unnecessary tax. As estate duty is only payable on the free residue of the estate that falls to be 22 South African law abolished the legitimate portion in the different states that later comprised the Union of South Africa during the period 1874-1903. 23 Luke 15:12. 24 See F. below and chapter 6. 25 Since the promulgation of the Maintenance of Surviving Spouses Act 27 of 1990, the claim of the surviving spouse is recognised alongside that of the children.

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distributed according to the rules of succession, the shrewd estate-planner is well advised not to mention his wife and dependent children in his will – provided that he appoints a trusted friend or the surviving spouse as executor for the administration of his estate. The executor is obliged not only to pay all outstanding debts, but must also reserve sufficient funds from the estate to fulfil all future obligations. Only then do the rules of succession come into play and with them estate duty. It does not need a rocket scientist to calculate the large amounts that can be deducted from the estate to provide for future maintenance if inflation is added to the calculation. This neat loophole would not be available if the claimants could only rely on their right to a legitimate portion under the rules of the law of succession. D. DELEGATION Although a testator may utilise the services of an amanuensis to help with the execution of his will and even to sign the document in his presence and on his instruction,26 common law does not provide for an agent or procurator to execute a will on behalf of the absent testator. Apparently, the principle of “freedom of testation” is not wide enough to include the freedom to delegate the ius testandi.27 That is a departure from the normal rules governing juridical acts. In principle, for example, a person may delegate his capacity to enter into contracts, and previously even a bridegroom could delegate the capacity to marry his bride to somebody else – the so-called marriage by proxy (“huwelik met die handskoen”).28 Apparently the absolute bar to any form of delegation of the ius testandi cannot be explained merely along the lines of the “very personal nature” of testation.29 The reported case law does 26 Wills Act 7 of 1953 s 2(1)(a)(i). 27 Estate Watkins-Pitchford v Commissioner for Inland Revenue 1955 2 SA 437 (A) at 458H-459A per Van den Heever JA: “The general policy of our law is that a testator must himself make his will and cannot commit the discretion as to who shall be beneficiaries under his will to others. There are a few exceptions such as bequests to piae causae, which are deemed to be bequests to the administrators of such funds and the case where a fiduciary is charged with the duty of allocating the bequest at his discretion to one or more persons belonging to limited class, or allocating the bequest in unequal proportions. The conferment of a right already enjoyed is a nullity. It is therefore unnecessary to inquire into the validity per se of an unfettered right of appointment, such as we have in this case. I am not aware of any case in South Africa in which a thorough investigation of Roman-Dutch authority on the subject has been made and I cannot help but surmise that dicta relating to the subject in our decided cases were unconscious echoes of English precedents.” 28 This well-established rule was abolished by s 29(4) of the Marriage Act 25 of 1961, after it had been acknowledged in e.g. Stiller and Dyzenhaus v O’Brien NO 1947 2 SA 1094 (W). See H R Hahlo, South African Law of Husband and Wife (1969) 75 n 42. 29 Cf the connection with personality rights suggested by Goebel, Testierfreiheit als Persönlichkeitsrecht (n 4) 359 ff. K Frielink, “Krankzinnigenwet en testeerbevoegdheid” (1989) 5911 WPNR

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not disclose the reason for this absolute prohibition against a delegation of the capacity to execute a valid will, other than the “old truth” that the chances for deceit and fraud in connection with a will are perceived to be so myriad that the law is unable to devise a system that will guard absolutely against fraud but at the same time allow for some form of delegation of the power to testate. The only recognised exception concerns the delegation of the power to appoint a specific beneficiary under a fideicommissum. It is submitted, however, that there are adequate ways of widening the possibilities for a testator to express his will even if it entails using the services of an officer of the High Court. E. CAPACITY TO EXECUTE A WILL (1) Mental incapacity The South African Wills Act provides that:30 Every person of the age of sixteen years or more may make a will unless at the time of making the will he is mentally incapable of appreciating the nature and effect of his act, and the burden of proof that he was mentally incapable at that time shall rest on the person alleging the same.

This statutory provision does not give the meaning of being mentally capable of appreciating the nature and effect of an act. In Kirsten v Bailey31 the court listed some relevant factors: The test to be applied in deciding the question of testamentary capacity is whether the testatrix was at the time of sufficient intelligence, possessing a sufficiently sound mind and memory, for her to understand and appreciate the nature of the testamentary act in all its different bearings.

The testatrix should be able to appreciate the implications of her act; she should be able to resist all forms of pressure concerning her will; and note should be taken of the general relationship of the testatrix with her relatives in comparison to her relationship with the beneficiaries favoured in the so-called will. These factors can be traced to well-known earlier appellate decisions32 205-206 refers to an act of the highest personal nature (“aangezien dat een hoogstpersoonlijke handeling betreft”). 30 Wills Act 7 of 1953 s 4. The provision was clearly modelled on s 9 of the English Wills Act of 1837. 31 1976 (4) SA 108 (C) at 109H-110A per Vivier AJ (emphasis added). 32 In Tregea v Godart 1939 AD 16 at 50, Tindall JA adopted a test for testamentary capacity given by Cockburn CJ in Banks v Goodfellow (1869-70) LR 5 QB 549 at 568: “The testator must, in the language of the law, be possessed of sound and disposing mind and memory. He must have memory; a man in whom the faculty is totally extinguished cannot be said to possess under-

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and to English cases.33 Forgetfulness to the extent of no longer forming a clear picture of responsibilities, or of relations to relatives, may be a symptom of a far-reaching deterioration of mental faculties. McLaren, more than a century ago, formulated the conceptual foundation of a challenge founded on insanity when he noted that “it imports not only a want of judgment, but the absence of will – the disposing mind”.34 It seems clear that the law should intervene more than is currently the case. Alzheimer patients or those suffering from senile dementia should not be allowed to execute a will without proper inquiry as to whether they understand the importance of the proposed act of testation and the effect of that act on others. The clinically depressed person, although not “insane”, is also entitled to some protection. Although the Wills Act prescribes the formal requirements for execution, there is no requirement that the execution be witnessed by an impartial professional person such as a medical practitioner or solicitor. Even where, as sometimes, the services of a commissioner of oaths are needed,35 the commissioner merely certifies that he has satisfied himself as to the identity of the testator “and that the will so signed is the will of the testator”. There is standing to any degree whatever, or for any purpose. But his memory may be very imperfect; it may be greatly impaired by age or disease; he may not be able at all times to recollect the names, the persons or the families of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered, and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory and vigour of intellect to make and to digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. This is a subject which he may possibly have often thought of, and there is probably no person who has not arranged such a disposition in his mind before he committed it to writing. The question is not so much what was the degree of memory possessed by the testator, as this: Had he a disposing memory? Was he capable of recollecting the property he was about to bequeath, the manner of distributing it, and the objects of his bounty? To sum up the whole in the most simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will?” 33 In Harwood v Baker (1840) 3 Moo PC 282, the testator made a will in favour of his wife, to the exclusion of the other members of his family, while suffering from a disease which affected his brain and impaired his mental ability. At 290 Erskine J said: “the question which their Lordships propose to decide in this case is not whether Mr Baker knew when he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property.” See also Battan Singh v Amirchand 1948 AC 161 at 170 per Lord Normand: “A testator may have a clear apprehension of the meaning of a draft will submitted to him and may approve of it, and yet if he was at the time through infirmity or disease so deficient in memory that he was oblivious of the claims of his relations, and if that forgetfulness was an inducing cause of his choosing strangers to be his legatees, the will is invalid.” 34 J McLaren, The Law of Wills and Succession (1894) § 492. 35 The commissioner of oaths only comes into play in well-defined circumstances where the testator is utilising the services of an amanuensis or is signing his will by mark: see Wills Act 7 of 1953 s 2(1)(a)(v).

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no duty to ascertain whether the testator is mentally capax. Whether this is satisfactory seems open to question. A possible reform would be to require the frail and the elderly to execute wills in the presence of a medical practitioner qualified to verify their mental state. Only a qualified person would be in a position to certify that the testator was still “of sound mind and memory” as required by the court in Kirsten. The requirement that a will be signed by two witnesses36 is not of itself a sufficient safeguard against possible coercion of the testator by those who hope to gain from the will. Indeed, as a result of an amendment made to the South African Act in 1992, relatives of a witness or even the writer of the will are no longer disqualified as beneficiaries.37 Only the spouse is targeted as a prima facie incompetent beneficiary, and even then the court may be approached to declare such suspicious persons competent to take benefit under the will if the court is satisfied that the persons have not unduly influenced or defrauded the testator in the execution of the will. In reality, if the testator lacked the necessary freedom of testation, the whole will should be a nullity and not merely the relevant provision or clause purporting to benefit the witness or the witness’s spouse. A possible solution would be to amend the Wills Act to require that every witness supplement his or her, often illegible, signature with a full disclosure of identity.38 Then at least the witnesses could be traced and questioned with regard to the circumstances of the execution of the will. (2) Testators who are aged or infirm The weak and infirm members of society are at the centre of my concern in this chapter. Kerridge refers to them as “the vulnerable testators” and describes them thus:39 “The standard vulnerable testator is old and frail. He is generally single, childless and not in close contact with his next-of-kin” – the people who would benefit if he was to die intestate. Although South African law presumes a person to have the ius testandi as soon as he turns sixteen,40 there 36 A “competent witness” means a person of 14 years or over who, at the time of witnessing, is not incompetent to give evidence in a court of law: Act 7 of 1953 s 1. 37 Wills Act 7 of 1953 s 4A, amended by Law of Succession Amendment Act 43 of 1992. 38 J C Sonnekus, “Voorgestelde statutêre wysiging van die erfreg” (1992) 17 TSAR 159. 39 R Kerridge, “Wills made in suspicious circumstances: the problem of the vulnerable testator” (2000) 59 CLJ 310. 40 Wills Act 7 of 1953 s 4: “Every person of the age of sixteen years or more may make a will unless at the time of making the will he is mentally incapable of appreciating the nature and effect of his act, and the burden of proof that he was mentally incapable at that time shall rest on the person alleging the same”. See also Law Reform Commission of British Columbia, Report on The Making and Revocation of Wills (1981) 18-23.

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is no cut-off point when the presumption might be questioned on grounds of possible mental incapacity.41 As people begin to live into advanced old age, it becomes necessary to devise ways to recognise the effect of ageing on a testator’s ability to withstand pressure to make or alter his will in order to favour someone whom he would not necessarily have favoured of his own accord. Charles Dickens’ Bleak House (1853) highlighted the probate problems faced by any person who wants to question a will that conforms ostensibly to the formalities of the Wills Act.42 This merely goes to prove the old adage that there is very little new or original under the sun.43 Indeed the scales are so clearly loaded against the person who wants to question the validity of such a prima facie valid will that the decision by the House of Lords in Wintle v Nye44 made history when it vindicated the doubting Thomas. In typical modern instances of undue influence the testator’s signature is not falsified nor has the document been tampered with. On the face of it, the document accords with every letter of the Wills Act. But it does not carry the free will of the testator because the testator could not distinguish between the true facts and the pretended scheme presented to him by the false persuader.45 The modern persuader is no longer interested in the well-known examples of undue influence mentioned in the older authorities: 46 Apart from dolus, fraus, vis and metus, our writers in this regard also refer to continuous, troublesome, unbridled and vicious demands (Berlichius Conclusiones 3 Con 6 para 33; Con 7 paras 29, 41 and 42), duress (Menochius De Praesumptionibus 4, Praes 12 para 8), urgent unrelinquished requests (Sande t.a.p.), sharply formulated requests (Carpzovius Definitiones 3 Const 5 Def 7), all of which are intended to overcome any reluctance on the part of the testator to capitulate to the duress. The pressure exerted on a testator is compared with extortion. Menochius, op cit 4 Praes 11, 10 said that it surpasses physical coercion (nimiam persuasionem esse plus quam violentam compulsionem), and Mantica De Conjecturis 2.7.4 said that it equals metus by sick persons. Peckius De Testamentis Conjugum 1.9.8 refers to extortion (extorsio autem et importuna flagitatio aequiparantur, cum in eadem causa sint obtenta per importunitatem et obtenta per metum . . . blanditiae instantissimae habent vim nimarum). Sande refers to intimidation and duress and Voet 29.6.5 refers to ‘xetorquere’. See also Leyser Meditationes 6 Spec 375, 8 and 41 See Executors of Cerfonteyn v O’Haire 1873 Buch 47 at 74; Kirsten v Bailey 1976 (4) SA 108 (C); Thomas v Clover NO 2002 (3) SA 85 (N) at 89A-G. 42 Bleak House has as its centrepiece the great litigation in Jarndyce v Jarndyce. The original of Bleak House was a country mansion in Hertfordshire, near St Albans: see A Mee and J A Hammerton (eds), The World’s Great Books vol 2 (1910) 1144. 43 This age-old truth is formulated by Goethe thus: “Alles Gescheite ist schon gedacht worden, man muss nur versuchen, es noch einmal zu denken”: see “Betrachtungen im Sinne der Wanderer – Kunst, Ethisches, Natur” nr 1 in Werke vol viii (1967) 283. 44 [1959] 1 WLR 284. 45 Cf the facts in Re Stott [1980] All ER 259 and Re Davey [1981] WLR 164. 46 Spies NO v Smith 1957 (1) SA 539 (A) at 546E-547D per Steyn JA (author’s translation).

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9, who refers to the fact that the testator succumbs in order to be left in peace. This negates the testamentary freedom of the testator and results in testamentum extortum. (Cf also Hollandse Consultatien, 3.2, Cons 108 p 357.) Sometimes it is mentioned in relation to artes captatoriae and dolus. Menochius op cit 4 Praes 12.8 presumes dolus if the testator was under undue stress cum multae persuasiones arguant dolum. In all cases, the free will of the testator is absent (Menochius De Arbitrariis casus 395, 41). Carpzovius Definitiones 3, Const 5.9 emphasised that a testament depends on freedom of testatation and free exposition of the testator’s will and should not depend on the will of a third party.

Kerridge has referred to the case, recounted by the UK television station Channel 4, of the unscrupulous conduct of an enterprising impostor who targeted old men in Hampstead. He carefully selected his victims: senior citizens, living alone or in an old-age home, without close connections to their family or relatives. In every instance the testator’s “last will” was witnessed by two unidentifiable signatories. In every case the sole beneficiary was the daughter of the stranger who also happened to be named as executor in the will.47 It would seem advisable to revisit the presumption about a testator’s soundness of mind after he or she has passed a certain age, such as 70.48 A provision which stated that “it is presumed that a testator who is 70 years or older is no longer capable of appreciating the nature and effect of his act unless otherwise proven” would shift the burden of proof to those interested parties who want to rely on the suspicious will. At the least, those persons would be alerted to the need to attend to additional formalities in order to rebut the presumption. This seems a more logical approach than the current, almost impossible, onus on next-of-kin who want to highlight possible foul play but who know nothing about the circumstances surrounding the will’s execution and who cannot provide medical testimony about unsoundness of mind for the simple reason that no medical expert attended the execution. Such a presumption would have the additional benefit of encouraging prospective testators falling within this category to have their wills executed in the presence of a person capable of testifying as to the soundness of the testator’s mind and memory.49 The same kinds of difficulty affect a testator who is younger but mentally infirm. It is unclear why a person who has been identified and certified as 47 Kerridge (n 39). 48 Cf the facts and the finding in Harlow v Becker NO 1998 (4) SA 639 (D) at 648G; and see J C Sonnekus, “Testamentsvervalsing en wilsonderskuiwing van verswakte bejaardes” (2001) 26 TSAR 357. 49 It is submitted that the medical practitioner should be released from his oath of silence concerning privileged knowledge in connection with the mental state of his patient under these circumstances.

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mentally unsound may still be considered capable of executing unassisted a valid will unless proven otherwise.50 The current presumption places an almost impossible burden on the shoulders of whoever wants to question the material validity51 of the will because, when it becomes an issue, the testator is no longer available for medical examination. In English law, it is acknowledged that a problem is lurking in the grey area of wills of senior citizens.52 As long ago as 1971 the English section of the International Commission of Jurists proposed an amendment to English law whereby it was to be presumed that any clause in a will of a senior citizen providing for a benefit to the owner or manager of a home where the testator lived was suspect and considered as pro non scripto unless independently verified.53 The difficulty has also been remarked with respect to German law.54 (3) Medium other than writing The principle that effect should be given to the last will of the deceased rests on the premise that the will is known and ascertainable from a legallyrecognised document. Since South African law departed from Roman-Dutch law’s nuncupative or oral testament, a last will can only be entertained if it is contained in a document. Certainly the legislature in 195355 did not contemplate the possibility that a will might be documented by an audio system or a video or digital camera. Yet today the assumption that a will must be documented on a piece of paper is no longer acceptable.56 If the testator, wishing to provide a more personal touch, decides, instead of the typical English novel’s scene of the “reading of the will”, to “speak” to his beneficiaries from the other side of the grave by using the latest technology, there seems to be no reason other than conservatism not to recognise the result as a valid will – provided, of course, it can be ascertained that the representation 50 In German law, the same position prevails: “Geistesschwäche, selbst Geisteskrankheit schließen die Testierfähigkeit nicht aus … Selbst eine ‘fortschreitende Gehirnerweicherung’ reicht für sich allein noch nicht aus, um den Erblasser für schlechthin testierunfähig zu halten”: H Bartsch, “Die postmortale Schweigepflicht des Arztes beim Streit um die Testierfähigkeit des Patienten” (2001) 54 NJW 861, with case law at nn 6 and 7. 51 As indicated above, a prima facie formally-valid will is presumed to be in order materially unless proven otherwise. This means no more than that the document should bear the necessary signatures on the required pages. 52 R Kerridge, “A case of a ‘suspicious’ will” (2003) 119 LQR 39; Parry & Clark, Succession 81-82. 53 Kerridge (n 39) at 330 n 97. 54 Bartsch (n 50) at 861-863. 55 The Wills Act 7 of 1953 was promulgated in 1954. 56 See J C Sonnekus, “Videotestamente naas skriftelike testamente” (1990) 15 TSAR 114.

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is authentic, has not been tampered with, and conveys the free last will of the testator. (4) Centralised registration of wills South African law has not adopted the sound principle employed in some continental57 and other58 systems whereby provision is made for wills to be registered directly after execution. Under the current system, there is no rule which provides that anybody or any authority needs to be informed when a will is executed. It is only after the testator’s death that a person in possession of a document purporting to be a last will is compelled to register the document with the Master’s office. The Dutch system allows the registering authorities to scrutinise wills for formal irregularity soon after execution, with the result that mistakes can often be rectified before it is too late to do so. The introduction of a central register would have obvious advantages. With regard to the wills of the group of testators that may be the object of undue influence, it would be possible for the registration authorities to determine at that early stage that a particular will needs to be executed in the presence of a medical practitioner due to the age or the previous mental condition of the testator. Similarly, intended beneficiaries under an earlier will, or next-of-kin, would be forewarned of the sudden alteration or addition to the earlier will and have the opportunity to take whatever action may be appropriate. Registration of wills soon after execution would provide a much-needed check on the almost unlimited freedom currently enjoyed with respect to “homemade” wills that only surface after the testator’s death and when it is difficult to question the circumstances surrounding their execution – especially if the purported witnesses cannot be identified. All in all registration is merely another way to ascertain that the last will of the testator is honoured. With computerised technology there seems to be no sound reason why a central register could not be set up in South Africa.59 Without making a significant 57 See art 4:106 of the new Dutch Code, following the example set by art 4:998 of the previous code which governed registration of wills after 1918. In 1966 the Council of Europe recommended the setting-up of a central register for wills, which resulted in the Basel Convention on the Establishment of a Scheme of Registration of Wills (1972). This was ratified by the Dutch government on 12 December 1977 and implemented on 13 March 1978. 58 Law Reform Commission of British Columbia, Report on The Making and Revocation of Wills (1981) 114. 59 The only objection offered by the Law Commission in South Africa – the perceived costs and administrative burden – can no longer be accepted today. See South African Law Commission, Review of the Law of Succession: formalities of a will, alteration and revocation of wills, disqualification from inheritance, substitution and the succession rights of adopted children (Project 22, 1991) para 2.163.

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inroad into freedom of testation, such a register would mark the abandonment of medieval notions of a secret or undisclosed will.60 F. FREEDOM OF ALTERATION OR REVOCATION Freedom of testation implies that, assuming capacity, a testator may alter or even revoke his will as often as he wishes. Even though the law imposes a multitude of checks and balances to prevent persons from exercising entitlements completely arbitrarily, testators are not curtailed in the same manner. No explanation is needed for a testator’s decision to alter his will, to disinherit his son or his wife, or to benefit the Wildlife Society. In this regard Lord Prosser correctly observed that: 61 It is no part of my function to prevent a testator from doing something which may seem unfair [and] it is not unusual for elderly ladies to alter their testamentary dispositions, hurtful though it may be to those who are thus excluded.

It has always been accepted that, since a will takes effect only on the testator’s death, no beneficiary derives a property right or claim from his anticipated status before that moment. Thus he cannot be heard to complain if the testator fell in love two months before his death and amended his last will accordingly. The mere fact that, to some, an alteration may be morally objectionable is not a ground of challenge. On the other hand, a prudent testator may care to execute an “uncommon” will in the presence of a medical practitioner who can testify, if need be, as to the testator’s soundness of mind. In 1997 the Frankfurt Court of Appeal62 held that: 63 Das durch den Grundsatz der Testierfreiheit (vgl § 2302 BGB) anerkannte Interesse des Erblassers, nicht schon zu seinen Lebzeiten über das Schicksal seines späteren Nachlasses Rechenschaft geben und sich von seinen potentiellen Erben nicht ‘zu Tode prozessieren’ lassen zu müssen, ist in der Regel höher zu bewerten als ein wie auch immer geartes Interesse eines potentiellen künftigen Nachlaßbeteiligten.64 60 In the Roman-Dutch law, provision was made for a secret notarial will: Grotius 2.17.25; Voet 28.1.26; J C G Kamfer, Testamentsformaliteite in Verskeie Regstelsels (1961) 254-256. 61 In Brogan v Rennie 1991 GWD 31-1885, as quoted by H Hiram, The Scots Law of Succession, 2nd edn (2007) para 6.3. 62 I.e. Oberlandesgericht. 63 30 January 1997, 20 Zivilsenat, Az 20 w 21/97; Cf 1997 Zeitschrift für das Gesamte Familienrecht 1021 at 1023; 1997 Monatschrift für Deutches Recht 481. 64 [By virtue of the fundamental principle of freedom of testation (see also BGB § 2302), it is in the interests of a testator to be free from the fear of having to answer in a court of law, during his lifetime, to potential beneficiaries who want to lay claim to his assets. The hopes of beneficiaries may never be elevated into a legal claim which the law will enforce during the testator’s lifetime.]

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In some jurisdictions it has been argued that the disappointed beneficiary should be awarded damages if somebody can be “blamed” for his disappointment.65 Yet as long as it is accepted that a testator is not bound to benefit any particular person in his will, it is unclear on what grounds a third party – such as the testator’s mistress or solicitor – can be held liable to the thwarted beneficiary-to-be. For the disappointed beneficiary cannot show an unlawful inroad into any legally relevant right – even though he genuinely expected to inherit; and I am not convinced that South African law will follow English case law and recognise something along the lines of proprietary estoppel66 to found a claim for the disappointed beneficiary.67 There is also no sound reason why the German experiments with Vertrauenshaftung or Vertrauensschutz need be followed in this regard. Of course if the new beneficiary was judged to have been unjustly enriched at the expense of the old, the latter may rely on the applicable remedies under the condictiones to right the wrong, at least if his claim for restitution fulfils the necessary requirements; but he cannot be heard to have a claim against either the estate or the solicitor for damages.68 Modern legal systems often omit to provide a mechanism which would allow the wills of elderly testators to be altered or even revoked if they are no longer able to do it themselves yet all the circumstances point to the conclusion that their will no longer corresponds with their true intentions. The curator of an Alzheimer’s patient cannot change his ward’s will even if he witnesses every day how her children scold and abuse her, well knowing that, due to her mental state, she can no longer disinherit them. This is the position notwithstanding the fact that if she had donated assets to the same children, then the donation would have been revocable on the basis of their conduct. If the testator was still of sound mind, there can be little doubt that she would have altered her will and preferred her friends, or the institution that cares for her daily needs, to the children or grandchildren who do not show her any affection. Yet unless the legislature changes the law to allow for 65 R Miserre, Die “Culpa in Testando” (2002) 3-5 argues that a cousin who invests all his savings in his uncle’s farm in the belief that he will be the sole testamentary beneficiary should be compensated if his uncle decided to alter his will in favour of his young mistress. 66 See the discussion of Wayling v Jones [1993] 69 P&CR 170 in J C Sonnekus and P J Rabie, The Law of Estoppel in South Africa (2000) 121 and 207. 67 See J C Sonnekus, “’n Vordering om skadevergoeding teen ’n nalatige testamentsverlyer en algehele testeervryheid in spanning” (2004) 41 TPR 623-651. 68 See M Harder, “schon zu Lebzeiten des Erblassers [haben keinen Subjek] eine schadensersatzbewehrte Rechtsposition”: “Anwaltshaftung wegen fehlerhafter Beratung des Erblassers bei Testamentserrichtung – Klages des Testamentsvollstreckers aus eigenem und abgetretenem Recht” Wirtschafts- und Bankrecht IV A ad § 2205 BGB 1.95 WuB at 1112; G Kegel, “Die lachenden Doppelerben: Erbfolge beim Versagen von Urkundspersonen”, in K Ballerstedt et al (eds), Festschrift für Werner Flume (1978) 545 at 550.

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the curator or the court to honour the presumed last will of a person in these circumstances, we may not be paying more than lip service to the premise that the last will of the testator is accorded supreme importance and will be applied. This topic is explored further in the next section. G. A ROLE FOR A STATUTORY WILL? A curator cannot represent his ward in juridical acts of a personal and intimate nature. So, for example, he cannot enter into a marriage contract on behalf of his ward or execute a valid will. In view, however, of the growing numbers of people surviving into advanced old age, it may be that South Africa should consider the introduction of legislation, along the lines of modern English, Dutch or Belgium law,69 to allow a responsible officer or the court to execute a will on behalf of a mentally infirm testator or to revoke an earlier will that no longer corresponds with his or her presumed free will. In English law, section 96 of the Mental Health Act 1983 makes provision for a “statutory will” – more aptly known as a “judicial will” – for certain categories of patient. These include not only those with age-related illnesses and the symptoms of ageing, but also young persons who suffered brain damage from an accident and who would otherwise not be able to execute a valid will. Especially in situations where the handicapped person was not legally married to the person with whom he has been sharing a house and whom he intended to marry, the rules of intestate succession would not provide an optimum answer for the distribution of his estate. Unless or until jurisdictions are prepared to apply a fiction that all relations should be treated as a marriage for this purpose, the fiancée would be unable to enforce any claim to his estate even though she may be prepared to care for him. The English statute provides for the execution of a will on behalf of the incapacitated person in the presence and under the supervision of a senior judge from the Court of Protection. Such a will may make any provision that the patient could have made if he had not been mentally disordered. This is only done after all the relevant circumstances have been clarified to the satisfaction of the judge.70 Representations may be made not only by the curator but also by other interested parties.71 The executed will bears the signatures 69 New South Wales also considered the introduction of legislation modelled on the English Mental Health Act 1983. It even proposed to extend the categories of infirm persons on whose behalf a judicial will may be executed, because it is realised that this privilege need not be restricted to the mentally handicapped: see J G Starke, “Wills for disabled persons – proposed reform of the law” (1989) 63 ALJ 807. 70 Mental Health Act 1983 s 97. 71 See Parry & Clark, Succession 66-68. In Re C [1991] 3 All ER 866 the patient was 75 and had

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of all persons present during the execution and indicates their capacity. In principle the court will attempt to make for the patient the will it supposes that he would have made for himself but for his incapacity. It has been said that the court should assume that the testator is having a brief lucidum intervallum during which he has full knowledge of the past and a realisation that he will relapse into incapacity as soon as the will is executed.72 An example is Re Davey.73 A male nurse in a home for the frail went through a marriage ceremony with an old and demented, but very rich, spinster aged ninety-two. As the effect of the marriage was to revoke the existing will,74 the nurse automatically became sole heir under the rules of intestate succession. The court upheld the request for a statutory will which excluded the nurse and reverted to the terms of her previous will in which friends and family were named as beneficiaries. In the Netherlands, where this issue had been under consideration for some time,75 provision has now been made in article 4:58 of the new Code: Hij die wegens een geestelijke stoornis onder curatele staat, kan slechts met toestemming van de kantonrechter uiterste wilsbeschikkingen maken. De kantonrechter kan aan zijn toestemming voorwaarden verbinden.76

Although the article provides for conditions that may be attached by the judge, it is silent as to their possible content, and I am unaware of any case law in which this article has been applied. It has been said that the article is the result of a compromise between freedom of testation and the law’s endeavour to ensure that the document entitled the last will truly encompass the testator’s last will.77

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been in a mental institution since her tenth year.Her estate was valued at more that £1.5 million. Her blood relations had never cared for her and their only concern was to be informed when she passed away in order to claim as intestate beneficiaries. In an application to make a will, Hoffmann J did not doubt that the patient herself would not be pleased if her relations benefitted from her death at the expense of institutions such as those that had been caring for her. See In re D(J) 1982 Ch 237 at 243 per Megarry V-C. [1981] 1 WLR 164. See further part C. of Chapter 7. M J A van Mourik, Erfrecht (1997) 93 indicated this much in his remark: “In dit verband verdient ook overweging een curator of een bewindvoerder als bedoeld in art 1: 431 ev, de bevoegdheid te verlenen namens de curandus of de persoon wiens vermogen onder bewind is gesteld, een uiterste wilsbeschikking te maken”. See also W Breemhaar, “De wegens een geestelijke stoornis onder curatele gestelde, de testeerbevoegdheid en het Marckx arrest” (1987) 5815 WPNR 61; W Breemhaar, “Nogeens curatele en testeerbevoegdheid” (1987) 5830 WPNR 303; K Frielink, “Krankzinnigenwet en testeerbevoegdheid” (1989) 5911 WPNR 205. A person who is under curatorship due to mental deficiency can execute a will or make a testamentary disposition only with the permission of a judge. The judge may make his permission conditional. Parlementaire Geschiedenis Boek 4, 253 ff.

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In Belgium, Swennen has advocated a fresh approach towards the infirm which in some instances might include the assisted execution of wills.78 The legislature in turn has been amending the relevant provisions since their introduction in 1991,79 thereby increasing the possibilities for justices of the peace80 to determine, in individual cases, the exact scope of competency that remains with the ward. This may entail that the ward can no longer conduct his own affairs or enter unassisted into contracts, but it may still allow the execution of a will if assisted by a justice of the peace. The most recent amendment explicitly provides for the execution of wills with the assistance of a justice of the peace.81 Apparently the curator82 cannot make gifts from the ward’s estate without the supervision of the justice of the peace.83 The Act makes provision for an application to amend the court order to allow the execution of a will by the ward. In reaching its decision on the extent of assistance (if any) which the ward may need, the court will be guided by medical evidence.84 Every decision of the court in this regard must be published in the government gazette.85 Since the recent amendment, the ward under curatorship must be assisted by the court with every contract of donation resulting in a liability for his estate and with the execution of a will. In this regard the legislation does not differentiate between a general wardship and one which is restricted. As in the Netherlands, the reported case law is still silent on the practical application of the new provisions, and it is uncertain under what circumstances justices of the peace will provide, or withhold, assistance for the execution of wills. It may be assumed that where the ward has absolutely no capacity to form a will on his own, the justification for court assistance will be absent. In this important regard, therefore, the legislation in Belgium does not cover the same ground as the English Act, where there is provision for a judicial will even in circumstances where the “testator” is incapable. 78 See F Swennen, Geestesgestoorden in het Burgerlijke Recht (2000) paras 353 ff. 79 Act of 18 July 1991, introducing a new art 488 bis (a) to the Civil Code, amended by Act of 8 November 1998 and by Act 3 of 2003. 80 Vrederechters. 81 Belgian Civil Code art 488 bis h § 2 (3 May 2003). 82 Bewindvoerder. 83 For a critical discussion of the authorities, see M Puelinckx-Coene, “Overzicht van Rechtspraak” (1999) 36 TPR 779 ff and 800 ff; F Swennen, Geestesgestoorden in het Burgerlijk Recht (2000) paras 349 ff. 84 The Act regulates the requirements for this medical evidence: the medical examination must have been conducted not more than a fortnight before the application is heard by the court and the medical practitioner may not be related to the ward. The medical practitioner may also not be connected in any way (e.g. keeping consulting rooms on a regular basis in the facility where the ward is being cared for) with either the ward or any one of the potential beneficiaries. 85 I.e. the Belgisch Staatsblad: see Civil Code art 488 bis (e).

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H. CONCLUSION There is scope to reconsider the weight given to freedom of testation as a guiding principle of the law of succession. In some instances the lacunae identified in South African law should be rectified by an amendment to the statute. In particular, the mentally infirm are entitled to the constitutionally guaranteed right to dispose freely of property even by means of a will.86 But in order to discourage fraud, consideration should be given to the introduction of a statutory will executed in the presence of a judge or a senior magistrate. The law of succession should not, by its inherent conservatism and aversion to change, pave the way for enterprising fraudsters to manipulate the last will of the vulnerable in our society and then excuse itself by quoting “voluntas coacta voluntas tamen est”.87

86 Constitution of the Republic of South Africa, Act 108 of 1996, s 25. 87 [An expression of will (uttered) under coercion is still an expression of will.]

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6 Testamentary Conditions and Public Policy James Chalmers* A. INTRODUCTION B. THE BASIS OF THE PUBLIC POLICY POWER (1) No opportunity for “recontracting” (2) “Striking a fair balance” C. THE INVALID CONDITIONS (1) Conditions in restraint of marriage (2) Conditions in restraint of religion (3) Conditions in restraint of living arrangements D. CONCLUSION A. INTRODUCTION In the fourth place, In the event of the said Mrs Helen Kidd or Chalmers [the testator’s wife] surviving me as aforesaid and entering into a second marriage then the provision made in her favor under the Third head hereof shall thereupon cease and come to an end and in heir and place thereof I direct my Trustees to pay to her from the date of such second marriage a free yearly annuity of Ten pounds Sterling … On the death of the survivor of me and the said Mrs Helen Kidd or Chalmers, or on her entering into a second marriage whichever event shall first happen I direct my trustees to realise the said Residue of my means and estate … and divide the same … equally amongst my children.

This provision, taken from the will of one James Chalmers, who died in Dundee in 1899, appears to have been a not uncommon feature of nineteenth-century Scottish wills.1 It represents one possible application of the power of the will, * The author is indebted to Shona Wilson for research assistance, and gratefully acknowledges the support of the overseas conference grants scheme of the British Academy. 1 The will is held in the Scottish Record Office (SRO) as SC45/31/51/320. So far as I know, the testator is no relation to the present author, although readers who believe in the hereditary theory of insanity may wish to note that his place of death is recorded as having been Dundee Royal Lunatic Asylum. The observation in the text about the frequency of such provisions is based on a cursory and unsystematic examination of testamentary documents held in the SRO: more rigorous research would be required to establish the true position. In making provision for an annuity in the event of the wife’s remarriage, rather than terminating provision in her favour entirely, the will appears to be unusual.

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in that the testator may attempt to dictate the behaviour of his beneficiaries after his death by means of attaching conditions to legacies. Just as legal systems do not recognise freedom of testation as an absolute right, and so protect certain parties against disinherison by means of forced succession or discretionary maintenance provisions,2 so certain attempts to dictate behaviour may be considered to be contra bonos mores and thus unlawful. This paper is concerned with the circumstances in which conditions attached to legacies will be regarded as contra bonos mores, allowing the beneficiary to take the legacy free of the condition. The approach taken here is broadly comparative, and the paper does not seek to provide a comprehensive account of the law in any single jurisdiction (full references will be found to such accounts in the footnotes). By taking an overview of the topic, this chapter seeks to do two things. First, it considers the rationale for denying testators the right to impose such conditions. Here, it is argued that one increasingly popular rationale – that the beneficiary has no opportunity to “recontract” with the testator – in fact fails to explain the operation of the contra bonos mores principle. Instead, the doctrine reflects a determination by the courts that certain conditions run contrary to fundamental legal values to such an extent that it would be against public policy to allow them to take effect, notwithstanding the weight given to freedom of testation. Such an approach, of course, is open to the obvious objection of arbitrariness and unpredictability – the latter being a particularly important consideration given that resort to the courts to determine the validity of a testamentary condition is an expensive process, likely to be unreasonably expensive in the case of most estates. Although the constitutionalisation process may provide a clearer framework for analysing such problems, it provides no clear answers but at best a fresh way of articulating the problem. The courts will still be required to weigh freedom of testation against other considerations in the same manner as has been done in the past. In this respect, it is argued that equality is a consideration of less importance than has been suggested, whereas other rights come more to the fore. Secondly, the chapter considers whether – if the matter is simply one of balancing considerations – this is all that can be said, or whether there is anything more principled at work? In this regard, the paper examines the approach which the courts have taken to the three most common types of 2 In Scotland, a surviving spouse and children are entitled to claim legal rights from the deceased’s moveable estate (see Macdonald, Succession paras 4.34-4.69), while in South Africa, a surviving spouse and minor children may have claims for maintenance (see De Waal & Schoeman-Malan, Succession para 7.1).

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conditions: conditions in restraint of marriage, religion, and living arrangements.3 Here, it is argued that the general approach of the courts has been predicated on a particular view of marriage and the family. That approach is relatively uncontroversial insofar as it views those institutions as worthy of protection against being placed in jeopardy by the caprice of a testator but it becomes more difficult to justify when it is invoked to permit the testator to control the behaviour of his family members from the grave – or even to maintain a family “relationship” which is otherwise terminated by death. B. THE BASIS OF THE PUBLIC POLICY POWER Why should certain conditions be held invalid as being contrary to public policy? Anglo-American writers have, over time, devoted much consideration to the inequities of “dead hand control”, primarily in the context of the rules against perpetuities and excessive accumulations. Much of this debate – at least its more historic aspects – is of little relevance here, because it focuses on the allegedly injurious economic effects of preventing the circulation of property for long periods of time,4 which is an argument of little (if any) force in the present context. Over time, however, the economic arguments have tended to be regarded as less convincing, and the focus has shifted to considerations of justice rather than economics.5 While it must necessarily be considerations of justice, rather than economics, which govern this area of law, exactly what those considerations are remains unclear. Textbook treatments of the subject have traditionally consisted of little more than lists of what the courts have held to be contrary (or not contrary) to public policy,6 although South African writers have shed 3 Such cases have been said to be “the most numerous and the most distressing”: J G Sherman, “Posthumous meddling: an instrumentalist theory of testamentary restraints on conjugal and religious choices” (1999) 99 University of Illinois Law Review 1273 at 1281. 4 The argument can be traced back at least as far as counsel’s submissions in the famous Thellusson case: “Mr Thellusson’s will … is politically injurious; as during the whole of that period it makes an immense property unproductive both to individuals and the community at large; and by the time, when the accumulation shall end, it will have created a fund, the revenue of which will be greater than the civil list; and will therefore give its processor the means of disturbing the whole economy of the country” (Thellusson v Woodford (1805) 11 Ves 112 at 114, 32 ER 1030 at 1031). The courts were not convinced by this argument, but Parliament intervened by way of the Accumulations Act 1800. 5 See, for example, L M Simes, Public Policy and the Dead Hand (1955) ch 3; Law Commission, Report on The Rules Against Perpetuities and Excessive Accumulations (Law Com No 251, 1999) paras 2.30-2.32. 6 See, for example, in Scotland: Wilson & Duncan, Trusts para 7.22-7.26; Macdonald, Succession paras 9.48-9.59. For South Africa, see De Waal & Schoeman-Malan, Succession 127, although here the list offered by the authors is followed by a discussion of how the established position might be altered by constitutionalisation.

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some light on the relevant principles by considering to what extent the constitutionalisation process might require the courts to modify the approach taken in this area.7 (1) No opportunity for “recontracting” One possible explanation for the rule is the lack of any ability on the part of the (would-be) beneficiary to persuade the testator to change his or her mind. Posner, considering the case of a testamentary trust which is to fail if the beneficiary does not marry a woman of the Jewish faith by his twenty-fifth birthday, writes as follows:8 Consider, however, the possibilities for modification that would exist if the gift were inter vivos rather than testamentary. As the deadline approached, the son might come to his father and persuade him that a diligent search had revealed no marriageable Jewish girl who would accept him. The father might be persuaded to grant an extension or otherwise relax the condition. If the father is dead, this kind of “recontracting” is impossible, and the presumption that the condition is a reasonable one fails.

This is closely linked to Langbein’s suggestion9 that the anti-dead-hand principle is fundamentally a change-of-circumstances doctrine … The living donor can always change his or her mind, as he or she observes the consequences of an unwise course of conduct, or as other circumstances change, but the settler who is deceased … cannot.

The difficulty here is that the rule does not operate in the manner in which this argument would suggest. First, if the rule were based on the testator’s inability to change his mind, then surely its operation would be defeated by evidence that the testator was absolutely resolute in his intentions? In other words, surely the sincerity of the testator’s intention would be crucial? Yet there is no indication that the courts have regarded such matters as being of importance. Secondly, the rule strikes down the most egregious and extreme conditions, rather than permitting for marginal adjustments to the more reasonable ones. 7 See F Du Toit, “The constitutionally bound dead hand? The impact of constitutional rights and principles on freedom of testation in South African law” (2001) 12 Stellenbosch LR 222; De Waal & Schoeman-Malan, Succession 128-129. 8 R A Posner, Economic Analysis of Law, 6th edn (2003) para 18.7. The example chosen by Posner is curious, because it is unlikely that the courts would hold such a condition to be unreasonable (to the extent that it would be struck out as a matter of public policy): see C.(1) below. The opening paragraph of para 18.7 suggests that Posner may have had in mind the exceptional case of Maddox v Maddox’s Administrator 52 Va 804 (1854). 9 J H Langbein, “Mandatory rules in the law of trusts” (2004) 98 Northwestern University Law Review 1105 at 1111.

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For example, if the “recontracting” argument is valid, should it not allow for a modification of testamentary conditions such as that in Gordon v Gordon,10 where any beneficiary who married “a person not born in the Hebrew faith” forfeited his rights under the testator’s will? There, the prospective beneficiary’s wife did not fall within the terms of that condition, but converted to Judaism after the testator’s death. If he had been alive, the testator might (we can only speculate) have been open to persuasion that his wishes should be reformulated slightly,11 but because the condition is not considered to be so outrageous as to be against public policy, the court cannot intervene. Here, indeed, lies the discrepancy between the “recontracting” theory and the actual practice of the courts. It is the wholly unreasonable, outrageous, inflexible testator who is caught by the rule, while the wishes of the more malleable, reasonable testator – the one who would be more likely to be open to “recontracting” – are left untouched. A true “recontracting” approach would allow all manner of wholly reasonable conditions to be reconsidered by the court in the light of changed circumstances, but this is not what the rule permits. (Indeed, it is not clear that the court’s power under this theory would stop at holding conditions pro non scripto – should, for example, a decision to exclude a prospective beneficiary from the scope of the will altogether not also be open to challenge?) Of course, countervailing considerations might be prayed in aid here – the law cannot allow all manner of conditions to be recontracted before the courts, because that would undermine certainty and the efficient administration of estates. But while that is doubtless true, it simply raises the question of why some conditions should be subject to judicial scrutiny and some should not – and this takes us back to the original policy question, with recontracting now unavailable as an answer. (2) “Striking a fair balance”12 An alternative approach is to argue that testamentary conditions may be objectionable as offending against fundamental rights afforded to the benefi10 124 NE 2d 228 (Mass 1955), cert denied 349 US 947 (1955). 11 The Court noted that “[f]rom the religious point of view of the orthodox Jew, a person who is converted to Judaism becomes, with minor exceptions, as though born a Jew. This concept, however, is not accepted by all Jews. Some hold that the conversion has no retroactive effect”: 124 NE 2d 228 at 230 per Wilkins J. 12 The phrase is borrowed from Simes’ justification of the rule against perpetuities: that “it strikes a fair balance between the desires of members of the present generation, and similar desires of succeeding generations, to do what they wish with the property which they enjoy”: see Simes, Public Policy (n 5) 58.

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ciary, an argument which is strengthened by the recent process of constitutionalisation in jurisdictions such as South Africa and the constituent parts of the United Kingdom. Such an argument is necessarily complicated by the fact that the relevant rights operate in both directions, as freedom of testation appears to be itself recognised as at least being of constitutional significance, and probably guaranteed by both the South African Constitution13 and the European Convention on Human Rights (ECHR).14 It has been observed that, in terms of the South African Constitution, therefore, reliance on a constitutional right in this context will necessary result in a “balancing exercise” where the court must “weigh freedom of testation against the competing constitutional right”.15 While the “horizontal effect” of the Human Rights Act in the United Kingdom remains unsettled,16 if the courts adopt the approach of “absorbing” ECHR rights into the common law,17 a similar approach might be anticipated in the United Kingdom jurisdictions. This sort of balancing exercise, however, is not new for the courts. In Blathwayt v Baron Cawley,18 decided in 1975, the Appellate Committee was referred to the European Convention by counsel for the appellant, who sought – unsuccessfully – to argue that a testamentary condition in restraint of religion (under which he forfeited all his rights under the testator’s will if he was, or became, a Roman Catholic) should be regarded as contrary to public policy. Lord Wilberforce responded as follows:19 My Lords, I do not doubt that conceptions of public policy should move with the times and that widely accepted treaties and statutes may point the direction in which such conceptions, as applied by the courts, ought to move. It may well be that conditions such as this are, or at least are becoming, inconsistent with standards now widely accepted. But acceptance of this does not persuade me that we are justified, particularly in relation to a will which came into effect as long ago as 1936 and which has twice been the subject of judicial consideration, in introducing for the first time a rule of law which would go far beyond the mere avoidance of discrimination on religious grounds. To do so would bring about a 13 14 15 16

Du Toit (n 7) at 233-234. Marckx v Belgium (1979-80) 2 EHRR 330 at para 63. Du Toit (n 7) 235. This is, for obvious reasons, not the appropriate place for a full rehearsal of the debate. See, e.g., R Buxton, “The Human Rights Act and private law” (2000) 116 LQR 48; H W R Wade, “Horizons of horizontality” (2000) 116 LQR 217; S D Pattinson and D Beyleveld, “Horizontal applicability and horizontal effect” (2002) 118 LQR 623. 17 The terminology of Lord Woolf CJ in A v B [2003] QB 195 at para 4, an approach which has parallels with the constitutional obligation of the South African courts to “promote the spirit, purport and object of the Bill of Rights” in developing the common law: see Constitution of the Republic of South Africa 108 of 1996 s 39(2). 18 [1976] AC 397. 19 [1976] AC 397 at 426.

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substantial reduction of another freedom, firmly rooted in our law, namely that of testamentary disposition.

The constitutionalisation process may, therefore, give the issue fresh impetus – depending, of course, on the extent that such conditions actually exist and are contested – but it is unlikely to bring a resolution to the debate.20 The balancing exercise inherent in “public policy” necessarily remains. The language of rights may, however, permit the debate to be articulated afresh, and it is worth considering what rights have been said to be pivotal here. South African commentaries have tended to place the right to equality at the forefront of the debate21 (it will be remembered at this stage that freedom from discrimination does not operate as a free-standing right under the ECHR).22 Whether equality is, in and of itself, a proper device for restraining testamentary freedom is questionable. A testator may, after all, choose not to confer benefits on certain individuals because of their choices in life, whatever these may be. Such decisions are unlikely to be clear ex facie of the will and, unless the potential beneficiary can have resort to devices such as forced succession or a claim for maintenance, there is no way to challenge the harshness of the testator’s decision. What is generally objectionable about such testamentary conditions as have been held contra bonos mores is not simply that they operate in an “unequal” fashion, but that they restrain the liberty of the beneficiary to make future choices – and here, there are at least echoes of the “recontracting” argument, in that the testator is neither open to such negotiation or societal pressure as might induce a change of heart. Consequently, it is not equality per se that has been – or, it is submitted, will continue to be – decisive in such cases, but instead rights such as freedom of religion, freedom of association, and the right to marry, which highlight the beneficiary’s right to make future decisions unconstrained by the unreasonable and unchangeable decisions of an individual now deceased.

20 The point is discussed further in S Grattan and H Conway, “Testamentary constraints in restraint of religion in the twenty-first century: an Anglo-Canadian perspective” (2005) 50 McGill LJ 511. 21 See Du Toit (n 7) 236; De Waal & Schoeman-Malan, Succession 128-129. 22 Art 14 of the Convention, although headed “prohibition of discrimination”, in fact is limited to prohibiting such discrimination in respect of the “enjoyment of the rights and freedoms set forth in this Convention” and so must be read alongside other provisions of the Convention to be given effect.

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C. THE INVALID CONDITIONS (1) Conditions in restraint of marriage It is commonly asserted, in both Scots and South African law, as much as elsewhere, that a condition which absolutely prohibits marriage will be void, and that the beneficiary will take the legacy free of the condition.23 Although there is clear authority for this proposition in South African law,24 clear authority in Scots law is rather more difficult to establish.25 At one point, the Court of Session was prepared to go so far as to hold that a condition disinheriting a daughter if she had already married a specified individual was contra libertatem matrimonii and therefore invalid.26 That decision was, however, subsequently overturned by the House of Lords.27 At an earlier stage, in Mackrath v Alexander,28 the Court of Session had held that a condition requiring marriage to a specified individual (in some respects the greatest possible restraint on marriage short of an absolute one, closing off as it does every other possible choice that might be open to the beneficiary) was invalid, preferring instead to allow John Mackrath to postpone his decision whether or not to marry Mary Alexander to a later date.29 (Mary Alexander’s views on the question are not recorded.) It may be that not too much should be made of this. The view that absolute prohibitions on marriage are of no effect in Scots law is accepted by the textbooks,30 has the support of the institutional writers,31 and is at least tacitly supported by other Court of Session decisions holding that a condition was not a condition in restraint of marriage, and therefore valid,32 or recognising an exception to the rule.33 23 Stair 3.8.24. See also McLaren, Wills & Succession para 1096 (“Restraints in marriage are clearly illegal and inoperative when they are, either in form or effect, equivalent to total prohibition.”) 24 De Wayer v SPCA Johannesburg 1963 (1) SA 71 (T). 25 It has been noted that similar categorical statements are commonly made in respect of English and American law, and that similar difficulties arise in substantiating them: see O Browder, “Conditions and limitations in restraint of marriage” (1941) 39 MichLRev 1288 at 1292 and 1306. 26 Douglas v Douglas’s Trs (1792) Mor 2,985; Ommanney v Bingham (1796) 3 Pat 448. 27 Ommanney v Bingham (1796) 3 Pat 448. 28 Mackrath v Alexander (1712) Mor 2,975. 29 John had pleaded that, although Mary was “of a full growth”, he was “of a weak tender sickly constitution, scarce the bigness of one of twelve years, and very unfit as yet for marriage; and though he does not decline it, yet he is persuaded the old man, if alive, would not be so unreasonable as to urge his marrying presently, till he came to a more solid habit of body …” ((1712) Mor 2,975 at 2,976). 30 See Wilson & Duncan, Trusts para 7.22; McLaren, Wills & Succession para 1096. 31 Stair 3.8.24; Bell, Prin § 1785. 32 Sturrock v Rankin’s Trs (1875) 2 R 850. 33 Kidd v Kidds (1863) 2 M 227.

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Assuming, then, that such conditions are invalid, what is the justification for this rule? In both Scotland and South Africa, the tendency has been simply to assert the rule rather than to offer a policy justification. One nineteenthcentury US court, however, justified the rule as follows:34 Upon the general proposition, the preservation of domestic happiness, the security of private virtue, and the rearing of families in habits of sound morality and filial obedience and reverence, are deemed to be objects too important to society, to be weighed in the scale against individual personal will.

Such a justification is interesting, because it identifies the rule clearly as being aimed at the protection of the family (as an institution), rather than at the protection of marriage per se. Indeed, marriage is of only instrumental value in this vision. The primacy of the family is demonstrated clearly by the South African case of ex parte Higgs NO: in re Estate Rangasami,35 where the condition was that “should any of my aforesaid sons marry and elect to leave the parental roof and establish a home elsewhere, he shall forfeit all interest under the will …”36 The Court held that the condition was valid:37 I can find no sign of any intention on the part of the testator to prevent his sons from marrying or to disrupt or interfere with the relationship between any particular son and his wife. The testator’s intention seems to me clearly to have been to keep his property and his family intact. I can find nothing contrary to public policy or contra bonos mores in that.

The courts have, however, been prepared to recognise a clear exception to the prohibition on restraints on marriage, in the form of the si vidua manserit non nupserit exception: that is, a testator may validly restrain the marriage of his or her surviving spouse.38 Empirical research in England has suggested that such conditions, although relatively rare, are a practical reality rather than aberrations: Finch et al found conditions of this type in seven (0.9 per cent) of their sample of 800 wills, noting that such provisions concerned “the testator’s wish to ensure that a spouse, cohabitee or other relative retains the Williams v Cowden 13 Mo 211 at 213 per Birch J (1850). 1969 (1) SA 56 (D). 1969 (1) SA 56 (D) at 57. 1969 (1) SA 56 (D) at 59 per Burne J. Similarly, a provision which might be viewed as a restraint on marriage (and might even have that effect) may be taken outwith the scope of the rule if it can be interpreted as having an alternative purpose. See Sturrock v Rankin’s Trs (1875) 2 R 850 at 854 per Lord Gifford: “[T]he provision in this deed is not a condition in restraint of marriage, but simply a provision for unmarried daughters who, in the view of the testator, had no other means of support”. 38 In Scotland, see Fowlis v Gilmours (1672) Mor 2,965, 2 Brown’s Supp 160; Kidd v Kidds (1863) 2 M 227. In South Africa, see ex parte Gitelson 1949 (2) SA 881 (O). 34 35 36 37

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right to the house previously shared, but only whilst s/he continues to live within the context of the relationship which that shared home represents”.39 Why is this type of restraint, exceptionally, a valid one? The answer, again, is that it is designed to serve the protection of the family – but a rather particular model of the family. As Lord Deas explained in Kidd v Kidds, “[t]he wife, leaving a family and a fortune, may wish to give the husband the income for himself and them, although not for another family; and if so, there is nothing in our law to prevent her.”40 Rather stronger language is found in the American case of Commonwealth v Stauffer, where Gibson CJ remarked that it would be “extremely difficult to say, why a husband should not be at liberty to leave a homestead to his wife, without being compelled to let her share it with a successor to his bed, and to use it to hatch a brood of strangers to his blood”.41 In other words, the exception is designed to allow the testator to preserve a family relationship – or at least as much of it as can be said to exist, given his or her decease. As with the general prohibition of restraints on marriage, the preservation of the family comes to the fore, but it becomes clear that this is a particular vision of the family. The rules are not designed to protect matrimonial liberty: instead, such liberty may readily be sacrificed to allow the testator to protect the particular vision of “family” which the law recognises here. The exception represents a view “that men have a sort of mournful property right, so to speak, in the viduity of their wives”.42 (2) Conditions in restraint of religion What may be termed “conditions in restraint of religion”43 have been recognised in two types of case: first, where the condition restrains the beneficiary’s religious practice in some way, and secondly, where the condition restrains the beneficiary’s choice of spouse. The courts have generally been willing – with some exceptions – to uphold the validity of such clauses,44 although in the Scottish case of Innes’s Trs v Innes,45 Lord Carmont suggested that, while it would be permissible to require a declaration of religion before a legacy was paid, it would be contra bonos mores to extract a promise from J Finch et al, Wills, Inheritance and Families (1996) 106-107. (1863) 2 M 227 at 232. 10 Pa 350 at 355 (1849). Knost v Knost 129 SW 665 at 667 per Lamm PJ (Mo 1910). Re Samuel [1942] Ch 1 at 30 per Lord Greene MR. See generally P Butt, “Testamentary conditions in restraint of religion” (1977) 8 Sydney Law Review 400; Grattan & Conway (n 20). 45 1963 SC 339. 39 40 41 42 43 44

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the legatees that they would continue to adhere to that religion for the rest of their lives.46 Why might it be permissible to restrain religious practice in this way? In the leading South African case of Aronson v Estate Hart,47 where the beneficiaries were to forfeit their rights under the will if they should “marry a person not from the Jewish faith or forsake the Jewish faith”, Greenberg JA offered the following justification:48 Whether the court agrees with the attitude or not, a person who is a reasonable, honourable, law-abiding and patriotic citizen may well fear that marriage between what can conveniently be described as Jew and non-Jew will tend as far as the spouses are concerned to increase the tensions and stresses, ordinarily to be expected between them, to such an extent as to lead to irreconcilable differences; in the case of the children of such a marriage he may equally be apprehensive of the unsettling effect on them of inner conflicts which may leave them rudderless and adrift on the sea of life. He may also fear that they may fall between two stools and be acceptable to neither section. I know of no principle in law which would make it contrary to public policy for him to attempt (according to his lights) to safeguard his descendants against these perils.

Conversely, in the rare cases where restraints on religious practice have been held contrary to public policy, the importance of “family” considerations has operated in the opposite direction. In the Australian case of Church Property Trustees v Ebbeck,49 the testator left his estate to his wife during her lifetime and to his sons on her death, on the condition that both the sons and their wives should profess the Protestant faith and would otherwise forfeit their share in his estate. At the time he wrote his will, two of his three sons had married Roman Catholics, while the third was about to and subsequently did so. The High Court of Australia, by a majority, held that the condition was contrary to public policy, as creating an opposition between the interests of his sons and their wives’ religious beliefs, something which “cannot but be in opposition to the policy of the law, its policy to preserve and maintain marriage”.50 Concerned with a different familiar relationship, the court which decided In re Devlin’s Trust Estate51 struck down a condition that the income of the property of a trust was to be applied to support the settlor’s son, but “only so long as he is brought up and reared in the Roman Catholic faith”. The 46 47 48 49 50 51

1963 SC 339 at 347. 1950 (1) SA 539. 1950 (1) SA 539 at 545. (1960) 104 CLR 394; cf Re Cuming (1945) 72 CLR 86. (1960) 104 CLR 394 at 404 per Dixon CJ. 130 A. 238 (Pa 1925).

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child’s mother, a Protestant, challenged the validity of the condition after her husband’s death, a challenge which it has been argued succeeded “more because enforcement would have caused parent/child conflict than because enforcement of the religious restraint was per se objectionable”.52 Even where the power of the testator to impose such restraints has been upheld, the courts have sometimes expressed disquiet. In the leading case of Clayton v Ramsden,53 the testator’s will provided that if his daughter were at any time to marry a person “not of Jewish parentage and of the Jewish faith”, the provisions in her favour under his will should cease. The Appellate Committee accepted that the testator had the power to impose a restraint of this nature, but resorted to the concept of uncertainty to avoid giving effect to the clause. The grudging acceptance of the power and the evasion of its consequences is seen most clearly in the speech of Lord Atkin:54 For my own part, I view with disfavour the power of testators to control from their grave the choice in marriage of their beneficiaries, and should not be dismayed if the power were to disappear, but at least the control by forfeitures imposed by conditions subsequent must be subject to the rule as to certainty prescribed by this House in Clavering v Ellison, and, judged by the test there prescribed, this forfeiture fails. It is true that, as contended by Mr. Danckwerts, on any possible construction of the clause Mr Clayton [the beneficiary’s husband], an English Wesleyan, was disqualified. But any possible construction is not the question. The actual construction must be certain, and, as it is not, the appeal succeeds.

It has been said, however, that the case has “been almost extinguished out of existence”.55 There are two reasons for this. First, it is based upon the nature of the condition as a condition subsequent – one which, in English law, would lead to the divesting of a gift or estate already vested, and must therefore be “framed that the persons affected … can from the outset know with certainty the exact event on the happening of which their interests are to be divested”.56 For that reason, the condition found in Re Allen,57 where certain property was to go to the eldest of the testator’s nephew’s sons “who shall be a member of the Church of England or an adherent to the doctrines”, was 52 J G Sherman, “Posthumous meddling: an instrumentalist theory of testamentary restraints on conjugal and religious choices” (1999) 99 University of Illinois Law Review 1273 at 1312. While that is one possible interpretation of the court’s decision, it is not clear on the face of the judgment which was issued, but the decision was nevertheless distinguished on this basis in In re Laning’s Estate 339 A.2d 520 (Pa 1975). 53 [1943] AC 320. 54 [1943] AC 320 at 325, citing Clavering v Ellison (1859) 7 HLC 707, 11 ER 282. 55 K Mackie, “Testamentary conditions” (1998-1999) 20 University of Queensland Law Journal 38 at 49. 56 Clayton v Ramsden [1943] AC 320 at 326 per Lord Russell of Killowen. 57 [1953] Ch 810.

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not avoided in the same way as the Clayton v Ramsden condition, because it was a condition precedent, and therefore not subject to the same strict requirements of certainty. It has been suggested that the distinction (rejected in Scots and South African law)58 is subtle and technical, and may lead to absurd results.59 However, it is consistent with the policy justification for invalidating conditions offered earlier, in that it will generally have the effect of testing conditions which seek to regulate future behaviour against a higher standard than conditions which are concerned with choices already made by the potential beneficiary. Secondly, and more importantly, Clayton v Ramsden is in no sense a decision that conditions in restraint of religion are per se void. Instead, it is a decision which is entirely dependent upon the facts of the particular case, and discloses no general principle. For that reason, courts have readily distinguished it in later cases,60 with the Appellate Committee itself declining to apply it to a condition concerning Roman Catholicism,61 and lower English courts upholding the validity of differently worded “Jewish faith and race clauses”62 in subsequent cases.63 In the leading South African case of Aronson v Estate Hart,64 which itself concerned such a clause, the Court declined to follow Clayton v Ramsden, with Van den Heever JA arguing that it was “artificial and unreal” to follow the approach of the English courts to conditions precedent: there was “no usefulness in a procedure which tests them in the light of hypothetical situations which may never arise”.65

58 In South Africa see Grusd NO v Grusd 1946 AD 465 at 478 per Davis AJA; in Scotland see Wemyss v Wemyss’s Trs 1921 SC 30. 59 S Grattan, “Perpetuating prejudice beyond the grave”, in E Cooke (ed), Modern Studies in Property Law vol 1 (2001) 257 at 265-266. 60 In the Irish case of Re McKenna [1947] IR 277 (see Grattan (n 59) at 266), which was concerned with the phrase “marry a Roman Catholic”, Gavan Duffy P went so far as to say (285) that he would “not make the law justly ridiculous in the eyes of persons of common sense by declaring a common expression, which the People knows and understands, to be unintelligible in the High Court of Ireland”. 61 Blathwayt v Baron Cawley [1976] AC 397. 62 As they have been termed in South Africa: see H R Hahlo, “Jewish faith and race clauses in wills” (1950) 67 SALJ 231; C P Joubert, “Jewish faith and race clauses in Roman-Dutch law” (1968) 85 SALJ 402. 63 Re Selby’s Will Trusts [1966] 1 WLR 43; Re Tuck’s Settlement Trusts [1978] Ch 49; Re Tepper’s Will Trusts [1987] Ch 358. The erosion of the “void for uncertainty” approach is traced in some detail by Butt (n 44). 64 1950 (1) SA 539. 65 1950 (1) SA 539 at 556.

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(3) Conditions in restraint of living arrangements In Fraser v Rose, the testator made substantial provision for his adult daughter in his will, under the condition that she was to leave her mother within four weeks of his death, otherwise she would forfeit all but a small fraction of her rights. The Inner House held that the condition was to be disregarded, with the Lord President (Boyle) remarking that no parent was “entitled to dissolve the obligations under which the child lies to the other parent”.66 By contrast, such regulation of relationships may be permissible where it does not interfere with existing family bonds – and so, in Balfour’s Trs v Johnston,67 the Inner House upheld a condition which required that the beneficiary should “never hold any communication with, nor take any interest whatsoever in” a “foundling” child whom the beneficiary had allowed to reside with her at times, both before and after the death of the testator. The court was clear that Fraser v Rose was to be distinguished:68 no authority was cited to us which would justify us in extending the principles applicable to the relationship of parent and child to an association between parties between whom no tie of blood exists, and it is obvious that different considerations apply to the two cases.

A fortiori, therefore, a restraint which is intended to bolster rather than undermine a blood relationship would seem to be a good one in law, and this was the conclusion reached in the South African case of Grusd NO v Grusd,69 where a usufruct in the surviving wife’s favour was to terminate on her remarriage, unless the testator’s children continued to reside with the wife after her remarriage.70 D. CONCLUSION This brief chapter has sought, principally, to highlight the importance which the courts have placed on the institution of the family in considering the extent to which testamentary conditions may be regarded as being contra bonos mores. It may be observed that this focus on the family takes two 66 (1849) 11 D 1466 at 1469. See also Grant’s Trs v Grant (1898) 25 R 929; Re Sandbrook [1912] 2 Ch 471. 67 1936 SC 137. 68 1936 SC 137 at 144 per Lord President Normand. 69 1946 AD 465. 70 The public policy question is not, however, entirely resolved by the Court. See 1946 AD 365 at 479 per Davis AJA (noting that “difficult questions” may arise in the future which “may well be settled between the parties amicably and without recourse to the courts: I shall certainly not attempt to accept the invitation of counsel to anticipate any of them now”).

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distinct forms. In one respect, it is protective, seeking to avoid beneficiaries being subject to testamentary restraints which may undermine existing family relationships. That aim is laudable, and in many respects uncontroversial. Elsewhere, however, the law takes on a more paternalistic form (or at least one which recognises and validates paternalism). Instead of seeking to protect pre-existing relationships (in human rights terms, respecting the private and familial lives of the parties concerned), it recognises a right on the part of testators to attempt to regulate family relationships and the behaviour of spouses and children from beyond the grave. It is one thing to “attempt to safeguard” (to adopt the phrase of Greenberg JA in Aronson)71 beneficiaries from unwise choices: it is quite another to force choices upon them, or to recognise a “property right” of testators to require that their spouses remain unmarried, preserving the ghost of a relationship otherwise interrupted by death. Such conditions are likely to remain open to challenge in the future, and in balancing the right to freedom of testation against the interests of beneficiaries, it is doubtful that anything other than the most abstract principles can be laid down. It is suggested, however, that it is appropriate for the courts to avoid regarding the paternalistic application of such conditions to legacies as benign and even beneficial. Recognising that such conditions represent a genuine conflict of interest and should properly be subject to a full public policy analysis would be a useful first step.

71 Aronson v Estate Hart 1950 (1) SA 539.

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7 Forfeiture Clauses and Events in Scots Law Roderick R M Paisley A. INTRODUCTION B. THE RIGHTS PASSING (1) The executor (2) The beneficiary C. THE MEANING OF FORFEITURE (1) Classes of forfeiture (2) Centrality of vesting D. CLASS (i) FORFEITURE (1) Legally implied examples (2) Examples created by testators (3) Gateways to vesting E. CLASS (ii) FORFEITURE (1) Survivorship (2) Spes successionis (3) Purpose (4) Trustees F. CLASS (iii) FORFEITURE G. CLASS (iv) FORFEITURE (1) The underlying condition (2) Examples in wills and trusts (3) Improper liferent (4) Trust H. CLASS (v) FORFEITURE (1) Obscurity in authorities (2) Real rights (3) Obligations (4) Trusts I. LIMITS ON TESTAMENTARY FREEDOM (1) No freedom of testation (2) Absolute exclusions of forfeiture clauses 114

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(3) Existing doctrines J. FLEXIBILITY K. CONCLUSIONS A. INTRODUCTION Forfeiture clauses and events leading to disinheritance or the forfeiture of bequests are well known in the field of succession as the means by which entitlements are forfeited in accordance with the express provision of the testator or by law. This chapter examines the nature of these forfeiture clauses and forfeiture events in Scots law. As forfeiture has limited application to the rights of executors,1 it will address forfeiture only in relation to beneficiaries’ rights. B. THE RIGHTS PASSING To understand forfeiture one requires an appreciation of the rights arising and passing on death and a familiarity with the law of vesting and the nature of an executor. Upon these matters the authorities are obscure because the study of the law of succession has for too long been divorced from the general law of property. For assistance one may refer to basic principles, although there remains a debate as to their precise application.2 For this chapter the following brief and, of necessity, over-simplified overview of the modern law will have to suffice. The deceased’s estate may contain both real and personal rights. There are conceptual difficulties with the idea that personal rights can be incorporeal things capable of ownership,3 but acceptance of this assists analysis of the transfer of the deceased’s estate to the beneficiaries. The purpose of the law of succession is to effect a conveyance of the items in the deceased’s estate to the relevant beneficiaries so that they are wholly distributed. Upon distribution, some beneficiaries may receive a real right, such as the right of ownership of a house, because that is what the deceased’s estate contained. Other beneficiaries may receive a personal right, such as a right to enforce a contract or a delictual right held by the deceased. In other cases the distribution of the 1 Milne v Milne (1826) 4 S 679; Johnston’s Exr v Dobie 1907 SC 31; Smart v Smart 1926 SC 392; Smith Ptr 1979 SLT (Sh Ct) 35; J G Currie, The Confirmation of Executors in Scotland, 8th edn, by E M Scobie (1995) paras 5.33-5.35, 5.51, 6.76, 7.04 and 8.29. 2 G L Gretton, ‘What is vesting?’ (1986) 31 JLSS 148; W M Gordon, “The wrongs and rights of vesting?” (1987) 32 JLSS 218; S C Styles, “Vesting and the law of property” (1989) 34 JLSS 338. 3 Gai Inst 2.12-14; J Inst 2.2.1- 3; D 1.8.1.1; K G C Reid, “Obligations and property: exploring the border” 1997 Acta Juridica 225 at 230-233.

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estate may lead to the creation of real rights or personal rights which did not exist when the estate was owned by the testator. This may be exemplified by a property bequeathed to one beneficiary subject to (a) a proper liferent4 in favour of another (b) a lease granted to a third beneficiary5 and (c) an option to purchase conferred upon a fourth.6 Only the first of these is a right existing when the estate was owned by the testator. When the process of executry conveyancing is complete, the executor retains nothing of the estate and the beneficiary receives ownership of the item conveyed, whether it be a real or a personal right. (1) The executor Upon the deceased’s death his property does not pass automatically to the beneficiaries. Nor does it pass by universal succession to a single heir for the purpose of distribution to other beneficiaries. Instead, Scots law requires the intervention of an executor. Where the relevant party is selected in the will of the deceased, the executor is known as the “executor nominate”.7 Failing acceptance by such a party, Scots law recognises a list of preference of parties entitled to petition the court to be appointed as “executor dative”. Whether nominate or dative, an executor is required to survive the deceased,8 accept his appointment9 and obtain a judicial conveyance of the estate of the deceased – known as “confirmation”. There are observations indicating that confirmation is the equivalent of aditio hereditas,10 but these seem to reflect an earlier period of Scots law in which the vesting of beneficiaries’ intestate rights was contingent upon the granting of confirmation.11 This is no longer the case12 and such references to adiation do not assist in understanding the modern law. Upon the grant of confirmation, every part of the estate of the deceased is stated by statute to “vest” in the executor.13 It is unclear exactly what this 4 5 6 7 8 9

10

11 12 13

This is a real right and the functional equivalent of usufruct. Gore-Browne-Henderson’s Trs v Grenfell 1968 SC 73. E.g. Green v Harrison, 7 Dec 1983 CSOH. For other instances of executors nominate, see Executors (Scotland) Act 1900 s 3. Currie, Confirmation (n 1) para 5.34. This is an extrajudicial acceptance by an executor nominate but, as regards the executor dative, his acceptance is his consent to the judicial petition for appointment: Currie, Confirmation (n 1) paras 7.30-7.35A. E.g. Nisbet v Scot (1707) Mor 3,809 at 3,809 per counsel for the defender; Smith’s Trs v Grant (1862) 24 D 1142 at 1169 per Lord Curriehill. See also Stair 3.8.51; Bankton, Inst, 3.8.41, 3.8.62 and 3.8.76. Cf J Erskine, Principles of the Law of Scotland, 21st edn, by J Rankine (1911) 614. Bell, Comm I, 137. Confirmation of Executors (Scotland) Act 1823 s 1. Succession (Scotland) Act 1964 s 14(1).

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means, but it seems to mean that there vests in the executor a real right of ownership in movables insofar as not already acquired by other means such as possession.14 As regards immovables15 there vests only a personal right, leaving the executor to acquire a real right by appropriate conveyancing methods. The real right to immovables rests meantime in haereditate jacente. After vesting, the executor appears to hold his rights to the deceased’s property, whether real or personal, in an executry trust for the purpose of distribution to the various beneficiaries.16 Dissenting views which assert that no trust exists are in the main obiter and, it is submitted, unsound.17 Some of these views claim the difference between an executor and a trustee is that the latter is a “depositary”18 and holds the estate for a continuing period of time, whereas an executor merely distributes the estate.19 However, the reference to a “depositary” reflects the now discredited attempt to explain a trust by reference to deposit20 and it has become clear in other contexts that trusts can be established purely to distribute funds realised from the sale of an estate.21 Furthermore, any distinction between an executor and a trustee for distribution of the estate is obscured, if not removed, by an overlay of statute.22 (2) The beneficiary For beneficiaries, vesting of a personal right to the bequest or the intestate benefit is followed by acceptance thereof and then by acquisition of a real right after completion of appropriate conveyancing. In many ways legacies and rights on intestacy are akin to unilateral promises made by the testator. However, they become capable of acceptance only upon the grantee surviving the deceased and, after death, they are payable only after the satisfaction of obligations incurred during life.23 Upon survival of the deceased, certain 14 Bell, Principles §§ 1890-1892; Bell, Comm I, 137. 15 Known in Scotland as “heritable property”. 16 Fulton v Fulton (1864) 2 M 893 at 900 per Lord Cowan; Erskine, Inst 3.9.26, 29, 33 and 42; Wilson & Duncan, Trusts paras 31.05-31.08. 17 The point usually at issue was the relationship of the executor to creditors, not to beneficiaries: Globe Insurance Co v McKenzie (1850) 7 Bell’s App 296 at 319 per Lord Brougham; Taylor & Ferguson Ltd v Glass’s Trs 1912 SC 165 at 169 per Lord President Dunedin; Macdonald, Fraser & Co Ltd v Cairns’ Exr 1932 SC 699 at 711 per Lord Morison. 18 Jamieson v Clark (1872) 10 M 399 at 405 per Lord President Inglis. 19 Fogo’s JF v Fogo’s Trs 1929 SC 546 at 551 per Lord Ormidale. 20 Stair 1.12.17, 1.13.7 and 4.6.3; Bankton, Inst 1.15.9, 1.15.14, 1.18.12; Erskine, Inst 3.1.32; Cuningham v Montgomerie (1879) 6 R 1333 at 1337 per Lord President Inglis; Allen v McCombie’s Trs 1909 SC 710 at 716 per Lord President Dunedin. 21 E.g. Conveyancing and Feudal Reform (Scotland) Act 1970 s 27(1); Mortgaging Of Aircraft Order 1972, SI 1972/1268, sch 2, para 10. 22 Executors (Scotland) Act 1900 s 2; Trusts (Scotland) Act 1921; Trusts (Scotland) Act 1961. 23 W W McBryde, The Law of Contract in Scotland, 2nd edn (2001) para 2.16.

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rights to bequests and legal rights “vest” in the beneficiaries and for such vesting no proceeding in the form of adiation is required.24 The rights which vest are personal rights only and are obligations of the deceased’s estate enforceable against the executor.25 In relation to the beneficiaries’ rights, the notion of “vesting” deals with the occasion when these rights emerge and become claimable by the relevant beneficiary.26 Until then the beneficiary has a spes successionis. A beneficiary is not bound to accept a right even if it has vested.27 Vesting merely confers upon a beneficiary an option to accept the bequest. This acceptance of a bequest is the exercise of the beneficiary’s option to accept the bequest, and appears to equate with the notion of adiation found in other legal systems.28 Upon acceptance of the vested personal right, the beneficiary may require the executor to distribute the estate properly and, as a corollary to such acceptance, is subject to counterobligations attached to the bequest. The time of distribution or payment of a bequest may be delayed by the testator to a date after vesting.29 When the estate is distributed, the ownership of the estate passes from the executor to the relevant beneficiary.30 In some cases of testate succession the testator sets up a continuing trust in terms of which his trustees hold the estate for the relevant beneficiaries. This may be regarded as an optional system providing an alternative to the role of the executor.31 A typical example is a trust in terms of which a beneficiary is provided with a liferent and another with a right to the fee. While such a trust endures the trustees hold the property right in the estate and the beneficiaries mere personal rights enforceable against the trustees.32 When the right of a beneficiary vests in such a case, the beneficiary has the option to accept the right. After acceptance, provided the terms of the trust do not 24 Morton v Young 11 Feb 1813 FC at 185 per counsel for defenders (legal rights); Mackenzie’s Marriage Contract Trs v Beveridge’s Trs 1908 SC 1185 at 1193 per Lord McLaren (legal rights and bequests). 25 But only after he accepts appointment, which is some time after the death. Enforcement prior to the executor’s acceptance of appointment remains obscure. 26 For a modern treatment, see M C Meston et al, “Wills and Succession”, in The Laws of Scotland: Stair Memorial Encyclopaedia vol 25 (1989) paras 902-961. 27 Possible exceptions are the survivor of the makers of a mutual will or a person who has otherwise contracted to accept a bequest. 28 For South Africa, see Corbett et al, Succession 17-20. 29 E.g. Grant v Cowe (1887) 15 R 81. 30 As regards heritable property, s 15 of the Succession (Scotland) Act 1964 provides a limited derogation from the rule nemo dat quod non habet for executors who have not completed title. See further G L Gretton and K G C Reid, Conveyancing, 3rd edn (2004) paras 21.12-21.16. 31 K G C Reid et al, The Law of Property in Scotland (1996) para 664(4). See also Executors (Scotland) Act 1900 s 3. 32 Sharp v Thomson 1995 SC 455 at 475 per Lord President Hope.

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delay the right to enjoy to a later period, the beneficiary may also begin to enjoy the benefit subject to any counter-obligations. Such enjoyment may involve actual present possession of an item of property as is the case with the trust liferent33 of a house and may comprise a counter-obligation of repair. Whether in an executry trust or a continuing trust, on the death of the deceased two types of rights emerge: that of the executor/trustee, and that of the beneficiary. In modern Scots law these are created and exist independently of each other. When the whole property in the estate is distributed to beneficiaries, the rights of the executor/trustee cease, and the personal rights of the beneficiaries with regard to the executor/trustee terminate when he performs his correlative obligation to distribute. C. THE MEANING OF FORFEITURE “Forfeiture” is a slippery term. At its widest it may include the cancellation of a bequest by the testator prior to death.34 However, this is generally regarded as a species of revocation and this present chapter will be limited to forfeiture of a bequest occurring at, or after, the death of the deceased. Even within this restricted scope we shall see that the word “forfeiture” is used to denote several very different phenomena. (1) Classes of forfeiture It is possible to distinguish five classes of forfeiture: (i) Vesting in a particular beneficiary is excluded because of conduct or events occurring prior to the death of the deceased. (ii) Vesting of the beneficiary’s right is made contingent upon the occurrence of future conduct or events after the death of the deceased. (iii) Vesting of the beneficiary’s right occurs but is subject to later defeasance35 upon the occurrence of some future event or conduct up to the date of the acceptance by the beneficiary of the vested bequest. (iv) Vesting of the beneficiary’s right occurs but is subject to later defeasance upon the occurrence of some future event or conduct after the date of acceptance by the beneficiary of the vested bequest, but before the item is conveyed to the beneficiary. (v) The process of mortis causa conveyancing is complete and ownership of the subject of the bequest has passed to the beneficiary, but is 33 Otherwise known as an “improper” liferent. 34 Calder v Millars (1890) 28 SLR 231 at 233 per Lord President Inglis. 35 This means removal or forfeiture.

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rendered subject to forfeiture upon the occurrence of future conduct or events. (2) Centrality of vesting The five classes of forfeiture clauses and events have one thing in common. All purport to prevent, suspend or reverse the vesting of a beneficiary’s right. Forfeiture and vesting are in many respects the two sides of the one coin. To that extent this chapter represents a further adventure into the dark forest of vesting. In applying the analysis, however, one should not expect easy answers in any given case and further research is needed to flesh out the exploratory conclusions. In addition, one should remember that many forfeiture clauses may be drafted to operate in a manner that means they fall into more than one of the classes. This is all the more so because the exact mechanics of forfeitures are not clearly focused in the minds of testators. For example, the bequest “I want my daughter to get nothing if she is living with X” can potentially fall within classes (i), (ii), (iv) and (v). One may now return to examine the five classes of forfeiture separately. D. CLASS (i) FORFEITURE Class (i) forfeitures disqualify a beneficiary by means of a complete exclusion of vesting. This is usually triggered by that beneficiary’s failure to comply with a condition of vesting relating to conduct or matters occurring prior to or at the date of the testator’s death. (1) Legally implied examples It is in this sense that the word “forfeiture” is found in relation to the legally implied exclusion of a killer from inheriting.36 Other legally implied exclusions operate in a similar manner but the mechanism is obscured by the fact that the word “forfeiture” is not used. This may be illustrated by the exclusion as beneficiaries of persons who subscribe a will on behalf of a testator who declares himself blind or unable to write.37 The relevant will is declared by statute to be “invalid ... to the extent, that it confers such benefit”. Similarly, 36 This is a common law forfeiture (Smith Ptr 1979 SLT (Sh Ct) 35) and is capable of modification in terms of the Forfeiture Act 1982. See also forfeiture under the Parricide Act 1594 c 30, which requires the killer to be convicted for murder and therefore cannot be a class (i) forfeiture: Oliphant v Oliphant (1674) Mor 3,429. 37 Requirements of Writing (Scotland) Act 1995 s 9(4). See R R M Paisley and M J de Waal, “Forfeiture of bequests to witnesses in South Africa and Scotland” (2002) 13 Stellenbosch LR 187-205.

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a bequest of a croft or an agricultural tenancy to an unsuitable person, such as one incapable of farming, is by statute “null and void”.38 In some cases the status of a person is defined by the general law so as to exclude him from the concept of family. This denial of kinship causes a loss of various rights, including intestate succession rights which that person otherwise would have. In a broad sense these instances can be regarded as class (i) forfeitures. The now abolished39 common law rules regarding an illegitimate child as filius nullius may be placed into this class.40 Similar provisions, albeit all of a statutory origin, are still found in modern Scots law. They include the exclusion of an adopted child from succession rights in the estate of its natural parents,41 the exclusion of a relationship of parentage between the genetic mother and a child carried by a surrogate mother42 and between a genetic father and a child born by artificial insemination and other similar treatments.43 A further example would be the exclusion from succession rights in the estate of his natural father of a child conceived with sperm used for artificial reproductive techniques after the father’s death.44 So, too, may a divorce lead to the loss of intestate succession rights because of the alteration of status.45 However, one might argue that these examples are pressing the classification of forfeiture too far. That said, were these statutory exclusions not to exist, a testator acting within the established restrictions on testamentary freedom46 could achieve equivalent exclusions in his will.47 Perhaps, therefore, there are sufficient similarities to include these legal exclusions relative to status within the study of forfeiture.

38 Agricultural Holdings (Scotland) Act 1991 ss 11(4), (6), 12(2), (3); Crofters (Scotland) Act 1993 s 10(4). 39 Law Reform (Parent and Child) (Scotland) Act 1986 s 1. 40 Bell, Prin § 2063. Erskine, Inst 3.10.8 extended this exclusion to the estate of both father and mother but Stair 4.12.1 and Bankton, Inst 1.2.4 limited it to the estate of the father. 41 Succession (Scotland) Act 1964 s 23. The child is granted succession rights in the estate of its adoptive parents: see Cameron v MacIntyre’s Exr 2006 SC 283. 42 Human Fertilisation and Embryology Act 1990 Act s 27. 43 1990 Act s 28(6)(a). 44 Subject to some exceptions: see 1990 Act ss 28(5A), (5B), (6)(b), 29(2), (3). 45 The rights lost include prior rights, legal rights and rights to free estate. However, there is no automatic loss of testate succession rights. Compare the position in England where a divorced spouse is regarded as predeceasing the deceased in a form of class (ii) forfeiture: Wills Act 1837 s 18A. The Scottish Law Commission favours such a rule: see Report on Succession (Scot Law Com No 124, 1989) paras 4.34–4.45. 46 Principally legal rights. 47 E.g. prior to 1964, and subject to the limitations of legal rights, a testator could exclude from a bequest a child adopted by someone else. Since 1986 he can exclude an illegitimate child: see Macdonald, Succession para 2.40.

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(2) Examples created by testators Class (i) forfeiture clauses may be created by testators. Within only a few limitations, the principle of freedom of testation permits the testator to attach to a bequest virtually any condition he wishes, duly fenced with a class (i) forfeiture. For economy of space, therefore, the illustrations outlined below are limited to those noticed in the decided cases relative to the commonly encountered topics of (a) financial standing, (b) employment, (c) residence and (d) family circumstances. (a) Financial standing: a testator may wish to exclude a beneficiary if too poor or insolvent48 or too rich (for example, if the beneficiary had already been provided for by receiving sufficient lifetime gifts49 or a bequest from another source).50 He may also wish to exclude a certain charitable institution from receiving a bequest if it receives state funding.51 (b) Suitable employment: a testator may wish to favour a beneficiary only if, at the date of testator’s death (or the earlier52 death of a third party), the beneficiary was continuously employed for a certain minimum period by the testator53 or by that third party.54 (c) Suitable residence: a testator may wish to include a beneficiary only if at the testator’s death the beneficiary was located or residing in Scotland55 or if he was residing with another party up to the earlier56 death of that other party.57 Requirements as to residence may also relate to the provision of accommodation to the testator and the testator may wish to leave a bequest only if the beneficiary had made accommodation available to the testator prior to his death.58 (d) Suitable family circumstances: a testator may wish to include a 48 Annand and Colhoun v Chessels (1774) Mor 5,844; Meston et al (n 26) para 873. For an English testament, see Trappes v Meredith (1871) 10 M 38. For South African law, see Vorster v Steyn NO 1981 (2) SA 831 (O). 49 E.g. the settlement in Booths v Black (1831) 9 S 406. 50 Gibson v MacBain (1786) Mor 620; Ker v Wauchope [1819] 4 ER 1; Ramsay v Anderson (1836) 14 S 570 (provision narrated at 570-571); Maxwell v Wylie (1837) 15 S 1005. See also the cases listed in McLaren, Wills and Succession vol 1 para 1089. 51 E.g. Dundee General Hospitals v Bell’s Trs 1952 SC (HL) 78. 52 A later date would create a class (ii) forfeiture. 53 E.g. Horne and Kynoch v Whyte 25 Nov 2003 CSOH, [2005] CSOH 115. 54 Simpson v Roberts 1931 SC 259; Meston et al (n 26) para 869. 55 Argo v Pauline (1905) 12 SLT 784, (1905) 13 SLT 480. 56 Again, a later date would create a class (ii) forfeiture. 57 Robertson’s Trs v White (1903) 11 SLT 566. 58 Miller Ptr 1977 SLT (Sh Ct) 67.

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beneficiary only if the beneficiary remained married to him59 or, alternatively, if the beneficiary was unmarried.60 The relevant family circumstances may relate to a third party and the testator may provide that a beneficiary may inherit only if the parents of the beneficiary were living together as husband and wife61 or if a named couple had two children born alive before a certain time.62 (3) Gateways to vesting Clauses such as these constitute exclusions from, or restricted gateways to, the vesting of bequests. They operate as at the death of the deceased even if the particular beneficiary was wholly unaware of the condition prior to death63 and was given no notice to alter his behaviour. However, where the bequest is intended as an incentive to future good behaviour rather than just a reward for past good behaviour, it is clearly desirable that the forfeiture is intimated to the beneficiary prior to death.64 In one sense such clauses impose no conditions on a bequest and involve no forfeiture because, if they operate, the beneficiary never loses anything he ever had except a misplaced spes successionis. This point has only rarely been judicially noticed (and then only partially)65 and clauses of this nature have frequently been treated as causing “forfeiture”.66 Trustees or executors (or even third parties) can be given power to determine whether the conduct or event leading to exclusion from vesting has occurred. In short, the trustees or executors or the relevant third parties are constituted gatekeepers to vesting. Those exercising such a power must act reasonably and in good faith.67 However, apart from this detail of the mechanics in this particular variant, for a class (i) forfeiture or exclusion clause to operate, no continuing trust is needed. An executor will be appointed to administer the executry estate in the usual manner but a class (i) forfeiture clause does not exist in 59 Ritchie v Ritchie’s Trs (1874) 1 R 987 at 989 per Lord President Inglis; Towse’s Tr v Towse 1924 SLT 465; Pirie’s Trs v Pirie 1962 SC 43. See also Henderson’s JF v Henderson 1930 SLT 743; Couper’s J F v Valentine 1976 SLT 83. 60 Aird v Aird’s Exrs 1949 SLT (Notes) 3. 61 E.g. Barker v Watson’s Trs 1919 SC 109 (bequest reduced). 62 Robertson v Moderator of the General Assembly of the Church of Scotland (1833) 11 S 297. 63 E.g. Barker v Watson’s Trs 1919 SC 109. 64 E.g. a bequest in a will from Northern Ireland made on condition “that my friends keep me out of a lunatic asylum”: McKee v Archibold [1933] NI 47. 65 Barker v Watson’s Trs 1919 SC 109 at 117 per Lord Justice-Clerk Scott Dickson, 120-121 per Lord Dundas. 66 Meston et al (n 26) para 861. 67 E.g. Dundee General Hospitals v Bell’s Trs 1952 SC (HL) 78.

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the context of a relationship between a trustee and a beneficiary: rather it operates to exclude that relationship. E. CLASS (ii) FORFEITURE A class (ii) forfeiture clause is a condition precedent:68 the vesting of the beneficiary’s right is made contingent upon the occurrence of future conduct or events. These usually involve an event or state of affairs occurring some time after the death of the testator. This forfeiture is effected by a condition rendering the vesting of the bequest suspensively conditional upon the occurrence of the requisite event or state of affairs. Whatever it is, the event or state of affairs may never occur. Adopting the classification of the Civil Law, Scots law refers to this as a dies incertus.69 (1) Survivorship It may be suggested that all succession rights are, by their very nature, inherently subject to a particular instance of a legally implied forfeiture clause of the class (ii) type. A condition of inheritance is survival of the deceased.70 Consequently, all succession rights are suspensively conditional until an instant passes and it is proved or deemed71 that the relevant beneficiary has survived. A failure of actual or deemed survival leads to forfeiture. Some statutory unworthiness provisions have utilised this model to disqualify the undesirable beneficiary by deeming him not to have survived. For example, until the recent repeal of the provision,72 a decree of judicial separation prevented a surviving husband succeeding to any estate his wife acquired after the date of separation if she died intestate. Such estate passed to the wife’s heirs and representatives “as if her husband had then been dead”.73 Despite earlier suggestions to the contrary,74 it has been judicially confirmed that the common law disqualification of a person who killed the testator does not operate in this way and the killer is not regarded as “predeceasing” the 68 McLaren, Wills & Succession vol 1 para 1084. 69 MacIntosh v Wood (1872) 10 M 933; Bell, Prin §1883; R C Henderson, The Principles of Vesting in the Law of Succession, 2nd edn (1938) 7; Macdonald, Succession paras 11.21-11.23. 70 McLaren, Wills & Succession vol 1 para 108, vol 2 para 1412. 71 Succession (Scotland) Act 1964 s 31. 72 Family Law (Scotland) Act 2006 s 45(2), Sch 3. 73 Conjugal Rights (Scotland) Amendment Act 1861 s 6. For comment on how such a provision may disrupt settlements, see Champaign County Bank & Trust Co v Jutkins 29 Ill 2d 253 at 259, 193 NE 2d 779 Ill (1963) per Justice Schaefer. 74 Scottish Law Commission, Succession paras 7, 15; Meston et al (n 26) para 672.

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deceased for the purposes of a destination over clause in a bequest.75 Consequently the forfeiture applied to such a killer at common law is a class (i) forfeiture and not a class (ii) forfeiture. One could argue that this analysis is more clever than useful and can largely be ignored while the present law stands. However, testators commonly require beneficiaries to survive for a certain period before they inherit.76 Furthermore, if the law is reformed in line with the proposal of the Scottish Law Commission to the effect that a minimum period of survival should be implied into all bequests and rights on intestacy,77 then this analysis may take on a new importance. (2) Spes successionis A forfeiture resulting from the failure to purify a suspensive condition can be argued to involve no loss on the part of the legatee because nothing is taken away from him except, again, a misplaced spes successionis. It is not the case, however, that the beneficiary in a bequest subject to a class (ii) forfeiture is in the same situation as the beneficiary in a bequest subject to a class (i) forfeiture. The spes successionis in a class (i) forfeiture exists whilst the deceased is still alive. As a will is ambulatory in nature,78 the testator is free to alter his will or, if intestate, the laws of intestate succession may be avoided by making a will.79 Within the limitations of testamentary freedom the testator may extinguish this spes utterly, render it more or less contingent or remote or add wholly new forfeiture clauses.80 Whilst the deceased is still alive, such a spes may be classified as a spes successionis in destinatione.81 In contrast to this, in relation to a spes in a class (ii) forfeiture, the will has ceased to be ambulatory or the deceased has died intestate.82 The executor of the deceased is bound to implement the terms of the will or laws of intestacy as fixed at death. He cannot unilaterally alter the will and defeat the spes established by 75 Hunter’s Exrs Ptrs 1992 SLT 1141. The same approach is found in Alberta: Re Bowlen Estate [2001] 98 Alberta Law Reports 381. For English law, see Re Callaway [1956] 2 All ER 451. 76 A W Barr, J M H Biggar, A M C Dalgleish and H J Stevens, Drafting Wills in Scotland (1994) para 5.15 and Style S3.6. See also McLaren, Wills & Succession vol 1 para 1090. 77 Scottish Law Commission, Succession paras 5.2 – 5.4. 78 D 34.4.3; Stair 3.8.pr; Bell, Comm II, 16. 79 Subject to legal rights which may be defeated by inter vivos transfer. 80 See Bedwells and Yates v Tod 2 Dec 1819 FC. 81 P Fraser, Treatise on Husband and Wife according to the Law of Scotland, 2nd edn (1876/1878) vol 2, 1406; W W McBryde and G L Gretton, “Sequestration and the spes successionis” (2000) 4 EdinLR 129 at 131-132. 82 This analysis leaves out the additional possibility of a power of appointment: Meston et al (n 26) paras 958-961.

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the terms of the will or render it more contingent or remote. It is a fortiori the case that the executor cannot unilaterally add to the forfeiture clauses already existing. Such a spes is a spes successionis in obligatione.83 Put another way, the relevant beneficiary in a spes in a class (ii) forfeiture has a right to preclude the executor from purporting to alter the will to his disadvantage by extinguishing the spes or rendering it more remote or contingent. (3) Purpose Class (ii) forfeiture clauses commonly involve suspensive conditions linked to factors personal to the legatee84 or linked to something within his power to perform. The former are known as “personal” conditions85 and the latter as “potestative” conditions.86 Both are frequently used to suspend vesting while the legatee continues in some activity considered by the testator as unworthy or undesirable, although it may be acceptable to society as a whole. One example is the beneficiary’s residence abroad.87 Class (ii) forfeiture clauses may also be used to suspend vesting until the beneficiary achieves a certain level of skill or competence or recovers his sanity.88 Following Roman law,89 Scots law recognises that they may be used to induce a beneficiary to take up an office such as that of executor or trustee90 or tutor to children.91 In other cases they are used to induce a beneficiary to carry out an activity which the testator may wish to occur but which he has no power to require if left as a direction in the will.92 Into this category falls a bequest to a beneficiary on the condition that he ensures the performance of particular funeral arrangements.93 The legatee’s continuing in the undesirable behaviour, his failure to attend to the funeral arrangements or a failure to take up office within any 83 See n 81 above, and also Allan’s Testamentary Trs v Allan’s Marriage Contract Trs (1907) 15 SLT 73. 84 Macdonald, Succession para 11.25 links suspensive conditions with personal conditions, but the link is not inevitable. 85 Henderson, Vesting (n 69) 5. 86 Henderson, Vesting (n 69) 344-345; Meston et al (n 26) para 862; Macdonald, Succession para 10.86. 87 Rodger’s Trs v Allfrey 1910 SC 1015. See also Waddell v Waddell (1738) Mor 6,366, but it is not clear whether the condition in that case occasioned a class (ii) or a class (iv) forfeiture. 88 Smith’s Trs v Smith’s Trs (1908) 46 SLR 19; Christie’s Trs Ptrs (1894) 1 SLT 550. 89 D 34.9.5.2. 90 E.g. Henderson v Stuart (1825) 4 S 306; Mellis’s Trs v Legge’s Exx (1898) 25 R 954; McLaren, Wills & Succession vol 2 paras 2085-2088. 91 E.g. Scrimzeour v Wedderburn (1675) Mor 6,357; Stair 1.6.6; Erskine, Inst 3.9.8. 92 See Bell, Comm I, 142-143 relative to power to impose conditions. 93 Barr et al, Drafting Wills (n 76) para 3.55; A G Brand, “Burial and Cremation”, in The Laws of Scotland: Stair Memorial Encyclopaedia vol 3 (1994) para 506. For English law, see Williams v Williams (1882) 20 Ch D 659.

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time limit stated in the will94 leads to the “forfeiture”95 of the bequest which will then lapse. For personal or potestative conditions the maximum time limit is the lifetime of the relevant beneficiary. For this reason the will in question should impose a duty on the executors or trustees to bring the possibility of forfeiture to the attention of the beneficiary so that he has a choice in the matter. Despite judicial reticence on the matter,96 it is submitted that such a duty would exist at common law in any event even if the will were silent. Where a testator employs a class (ii) forfeiture clause linked to the behaviour of the beneficiary, the legacy vests only if the beneficiary purifies the suspensive condition by altering his behaviour or carrying out the activity as desired by the testator. However, the testator and his executors or trustees have no power to force the beneficiary to alter his behaviour or carry out the desired activity. It remains wholly within the option of the relevant beneficiary as to whether he wishes to incur the forfeiture or not. (4) Trustees In some testamentary schemes the determination of whether the dies incertus has occurred can be certified by the trustees or the dies incertus itself could be the determination of trustees (or someone else) that vesting is to occur. Put otherwise, the determination of the trustees can be declaratory or constitutive of the event of vesting. The latter is clearly much more draconian and gives rise to the possibility of discretionary trusts in which vesting of the beneficiary’s right is wholly dependent upon the actions of trustees.97 Regardless of whether the trustees’ actions are declaratory or constitutive of the event of vesting, it is apparent that class (ii) forfeiture clauses involve the use of a trust. Trustees will hold the subject of the bequest pending the non-purification of the suspensive condition. Many suspensive conditions do not extend the duration of the trust beyond the normal period of distribution encountered in an executry trust. The requirement of survivorship involved in all successions illustrates the point. Consequently, in a class (ii) forfeiture the executors stand in a relationship of trust with the relevant beneficiaries and must always operate the forfeiture properly with a view to identifying and paying the correct beneficiaries. 94 95 96 97

Rodger’s Trs v Allfrey 1910 SC 1015 (three years from the testator’s death). Rodger’s Trs v Allfrey; Meston et al (n 26) para 863. Rodger’s Trs v Allfrey 1910 SC 1015. E.g. Paterson’s Trs v Paterson (1870) 8 M 449; Arkley v Paterson (1893) 1 SLT 336; Henderson, Vesting (n 69) 246-261.

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F. CLASS (iii) FORFEITURE In a class (iii) forfeiture the vesting of the beneficiary’s right is allowed to occur, and forfeiture operates by means of a resolutive condition98 in that vesting is subject to the possibility of later defeasance upon the occurrence of some future event or a state of affairs. The latest time at which this may occur is upon, or immediately before, acceptance by the beneficiary of the bequest. By accepting the bequest the beneficiary precludes forfeiture or bars himself from carrying out the act that would otherwise cause it. It is possible to regard class (iii) forfeitures as a sub-class of class (iv) because the nature of the right forfeited is a personal right arising from a trust – a factor common to both. Class (iii) forfeitures are sometimes used to require a beneficiary to accept a bequest within a certain time limit after vesting, failing which the bequest will be forfeit.99 Statutory examples exist in relation to bequests of crofts100 and agricultural tenancies.101 A further illustration of a class (iii) forfeiture is the legally implied condition to the effect that a provision in a will in favour of a surviving spouse, civil partner or child of the testator is in “full and final satisfaction” of a claim to legal rights.102 The effect of this statutory provision has been accurately summarised thus: “a person who elects to claim legal rights rather than take the conventional provision, forfeits his or her entitlement to the provision”.103 Conversely, the acceptance of the bequest under the will amounts to election in favour of the provisions in the will and the beneficiary thereafter is personally barred from claiming his legal rights on the basis of the doctrine of “approbate and reprobate”, otherwise known as “election”. Hence, after acceptance of the provisions in the will the beneficiary cannot choose to claim his legal rights and is not vulnerable to forfeiture of the benefits under the will. This last statutory forfeiture clause may be contrasted with the commonly encountered express condition that a beneficiary challenging the provisions of a will shall forfeit any benefits under the will.104 This common forfeiture may be sufficient to deal not only with beneficiaries seeking to claim legal rights, but also with those who seek to frustrate the terms of the will in other 98 McLaren, Wills & Succession vol 1 para 1084 uses English terminology in describing this as a “condition subsequent”. 99 E.g. Soutar v MacGrugar 22 Jan 1801 FC 483 (one year); Weber’s Trs v Riemer 1947 SLT 295 (three years). See also McLaren, Wills & Succession vol 1 para 1091. 100 Crofters (Scotland) Act 1993 s 10(2). 101 Agricultural Holdings (Scotland) Act 1991 s 11(2), (8). 102 Succession (Scotland) Act 1964 s 13; Civil Partnership Act 2004 s 131(4). 103 Meston et al (n 26) para 779. 104 Meston et al (n 26) para 872.

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ways. It therefore enables the forfeiture of a vested bequest that has been accepted by the beneficiary who then proceeds to challenge other parts of the will with a view to increasing his entitlement. To that extent it is to be regarded as a class (iv) forfeiture and not a class (iii) forfeiture. Some wills also require a beneficiary to grant a discharge of legal rights as a condition of payment of a legacy.105 If linked to a forfeiture, that, again, is a class (iv) forfeiture and not a class (iii) forfeiture. If, however, the grant of the discharge is a precondition of the vesting of the legacy it is a class (ii) forfeiture. A class (iii) forfeiture operates in the context of a relationship of trust in that it requires an executor to assess the legitimacy of the claim to legal rights and to seek evidence of the election by the relevant beneficiary. G. CLASS (iv) FORFEITURE In a class (iv) forfeiture the beneficiary’s right has vested and the beneficiary has accepted the bequest. Forfeiture operates by means of a resolutive condition106 in that the vesting of the beneficiary’s personal right is subject to the possibility of later defeasance upon the occurrence of some future event or conduct before ownership of the item is conveyed to the beneficiary. Where there is a trust purely for executry purposes (i.e. to distribute the estate in terms of a will or the laws of intestate succession), a class (iv) forfeiture can operate at any time up to distribution. However, the nature of the forfeiture is clearer where a continuing trust exists. (1) The underlying condition After acceptance by the beneficiary, counter-obligations attached to the bequest can be enforced by the executors. Such counter-obligations, fenced with an appropriate forfeiture, are useful where the testator wishes to require the beneficiary to engage in or refrain from behaviour over a period of time. Furthermore, a class (iv) forfeiture may be used where the counter-obligation relates to the use or maintenance of the item of the bequest. To comply with such a counter-obligation, the beneficiary requires possession of the subject of the bequest, and this will generally not be available until the bequest is accepted. Where the act required of the beneficiary is a single act, such as payment of some sort of “bequest price”, the testator has the option of using 105 At common law trustees cannot claim a discharge of legal rights before payment of a legacy: Laing v Laing (1895) 22 R 575. 106 Again see the use of the English term “condition subsequent” in McLaren, Wills & Succession vol 1 para 1084.

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a class (ii) forfeiture. However, with that sort of forfeiture the executors never obtain an enforceable right to require the beneficiary to make the desired payment, to carry out the desired act, or to restrain the beneficiary from the undesirable behaviour.107 (2) Examples in wills and trusts Subject always to the limitations of testamentary freedom, there is an almost infinite variety of the class (iv) forfeitures that may be created in wills and trusts. The case law indicates that they include the following in wills: (a) A bequest to beneficiary A on condition that beneficiary A gives certain property Y, owned by beneficiary A, to beneficiary B. Upon accepting the bequest beneficiary A becomes liable to the executors108 to convey the property Y to beneficiary B. If beneficiary A refuses to make the required transfer to beneficiary B the bequest is forfeit, but when he makes the transfer the bequest ceases to be liable to forfeiture.109 As an alternative to a class (iv) forfeiture, the will may use a class (ii) forfeiture and render the vesting of the bequest to beneficiary A suspensively conditional upon the completion of the transfer of property Y to beneficiary B. As Bell noticed,110 both may be regarded as an instance of approbate and reprobate. (b) A bequest subject to the condition that the beneficiary pays the testator’s debts.111 Examples of class (iv) forfeitures in continuing trusts include: (a) A bequest of income for a church for so long as it did not unite with a particular denomination.112 (b) A liferent provision of income of an estate to be paid to a widow for so long as she remained unmarried.113 (c) A provision that a daughter would forfeit a bequest of residue held in trust for her pending her minority if she married without the consent of her curators.114 107 108 109 110 111 112 113 114

See text at notes 95-96 above. There may also be a ius quaesitum enforceable by beneficiary B. See the obiter remarks in Ker v Wauchope [1819] 4 ER 1 at 21-22 per Lord Eldon. Bell, Comm I, 42. Moncreiff v Skene (1825) 1 W & S 672; Bruce’s Trs v Hamilton (1858) 20 D 473. E.g. Bannerman v Macqueen (1896) 4 SLT 71. E.g. Bruce v Bruce’s Trs (1898) 5 SLT 359. E.g. Murray’s Exrs v Murray (1868) 5 SLR 209 at 209 per Lord Jerviswoode, 210 per Lord President Inglis.

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(d) A provision that an annuity is to be paid to a beneficiary for so long as she resided in her own house separate from her mother-in-law.115 (e) A trust fund which provided that the beneficiary should forfeit the right to receive income should he mortgage the funds, assign them, become insolvent, or should the funds cease to be receivable by him.116 (3) Improper liferent Perhaps the most commonly encountered context for class (iv) forfeitures is an “improper” (trust) liferent constituted by a mortis causa settlement. Whilst the liferent endures, a continuing relationship exists between the trustees and the liferenter and between the trustees and the fiar.117 In both relationships there may be class (iv) forfeiture clauses. Wills have included conditions to the effect that the liferent or fee (as the case may be) will be forfeited if: the liferenter communicates with a named party;118 the liferenter declines to live on the liferented subjects;119 the liferenter allows certain named third parties to reside there;120 the liferentrix remarries;121 the fiar succeeded to a particular estate during the endurance of the liferent;122 and (f) the fiar, having received an assignation of the liferent, allows certain named third parties to reside on the heritable subjects of the liferent.123

(a) (b) (c) (d) (e)

(4) Trust The relationship between executor or trustee and beneficiary is essential for the existence of a class (iv) forfeiture. The will may state that the determination of the executors or trustees or someone else may be declaratory or constitutive of the event upon which forfeiture is to occur. The latter form of 115 116 117 118 119

120 121 122 123

McMillan v Kerr’s Trs (1902) 18 Sh Ct Rep 132. Forster v Campbell (1866) 2 SLR 98. The fiar is the beneficiary entitled to the property. Balfour’s Trs v Johnston 1936 SC 137. Hamilton v McCunn’s Trs, 10 March 1900 CSOH, in W C Smith, “Notes on Decided Cases” (1903) 15 JR 199. The closed record, interlocutor sheets and other papers are in the National Archives of Scotland under reference: Mary Ryburn McCunn or Hamilton v William Alexander Caskie and others, Trustees of William McCunn, Declarator, 1899, CS249/3207. Wemyss v Wemyss’s Trs 1921 SC 30. Miller’s Trs v McLellan 1911 1 SLT 444 (partial forfeiture). E.g. Bell’s Trs v Bell 1916 2 SLT 250. Wemyss v Wemyss’s Trs 1921 SC 30.

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discretionary forfeiture would render the provision to the beneficiary precarious indeed. With regard to a class (iv) forfeiture clause, the effect of the forfeiture is that the personal right of the beneficiary terminates. The executors or trustees are then required to implement the terms of the will or trust by redistributing the property to another beneficiary. H. CLASS (v) FORFEITURE For forfeitures in class (v), not only has the bequest vested in, and been accepted by, the beneficiary but also the ownership of the subject of bequest has been transferred. The relationship of trust established in the will has therefore already come to an end, and one must seek a mechanism for forfeiture wholly different from that encountered in classes (i)–(iv). Subject to one exception, all forfeitures in class (v) appear to be created by provision of the testator. The exceptional case is forfeiture occurring on the operation of the peculiar doctrine of vesting subject to defeasance, in terms of which vesting in a beneficiary may be undone upon the birth of issue to a particular person.124 (1) Obscurity in authorities A certain number of cases support the existence of a class (v) forfeiture, although the nature of the underlying condition to which they are attached may be limited by the doctrine of repugnancy. However, many of the case reports are so poor or the reasoning in the cases so inadequate that it is impossible to identify the mechanism involved. In particular, when one examines many of the cases dealing with bequests on condition of the assumption of a certain name,125 residence,126 remarriage127 or payment of money when the subject of the bequest is disposed of,128 it is impossible to identify whether they involve class (iv) or class (v) forfeitures. Furthermore, the cases relative to repugnancy offer no clear pattern.129 That said, there appears to be no reason why it should be any more difficult to attach a forfeiture clause to 124 For modern analysis, see Meston et al (n 26) paras 902-961. 125 E.g. Hunter v Weston (1882) 9 R 492; Smollett of Bonhill Ptr 1959 SLT (Lyon Ct) 3; Sir Hugh Vere Huntly Duff Munro-Lucas-Tooth, Baronet 1965 SLT (Lyon Ct) 2; Meston et al (n 26) para 871. 126 Reid v Coates 5 March 1813 FC; Fraser v Rose (1849) 11 D 1467; Grant’s Trs v Grant (1898) 25 R 929; Henderson, Vesting (n 69) 343. 127 E.g. Rigg’s Exx (1905) 13 SLT 144; Beaton’s JF v Beaton 1950 SLT (Notes) 63. 128 E.g. Falconar Stewart v Wilkie (1892) 19 R 630. 129 E.g. Simson’s Trs v Brown (1890) 17 R 581; Miller’s Trs v Miller (1890) 18 R 301; Veitch’s Trs v Rutherford 1914 SC 182.

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a mortis causa gift than to a lifetime gift, where the practice has long been recognised.130 One must therefore have resort to a template provided by basic principles. (2) Real rights Where the right transferred to the beneficiary is a real right, then whether or not a forfeiture clause is effective is largely an issue of the law of property. The first question is whether a forfeiture or irritancy is compatible with the relevant real right. This appears possible in relation to proper liferent, lease and servitude but no longer with ownership.131 In theory, any lawful condition binding the liferenter in a proper liferent can be fenced with a forfeiture clause. This could relate to the beneficiary’s residence in the subject,132 the marriage or remarriage of the beneficiary,133 or his attempt to alienate the liferent.134 Slightly different principles apply to leases and servitudes but they are encountered far less commonly in the context of succession. The party entitled to enforce these conditions and the attendant forfeiture is, for proper liferent and lease, the beneficiary to whom there has been conveyed the right of ownership in the subject of the bequest.135 For servitudes the relevant party is the beneficiary to whom the burdened property is conveyed. The operation of the forfeiture is therefore contained within the relationship of two real rights conveyed to two separate beneficiaries and requires no continuing trust. Consequently the forfeiture may be operated years after the entire estate has been distributed and requires no input by executors. (3) Obligations As a condition of the conveyance of the subject of the bequest, a beneficiary may be required to give a separate counter-obligation in the form of a promise or contract to convey the subject to another named beneficiary in the event that certain events occur. This obligation might relate, for example, to the future conduct of the beneficiary. In one reported case a condition was attached to a bequest requiring that a beneficiary not only be a Protestant 130 E.g. Young’s Trs v Incorporated Trades of Perth (1893) 20 R 778. 131 Abolition of Feudal Tenure etc (Scotland) Act 2000 s 53; Title Conditions (Scotland) Act 2003 s 67. 132 Scott v Price (1837) 15 S 916. 133 Kidd v Kidds (1863) 2 M 227; Meston et al (n 26) para 866. 134 Chaplin’s Trs v Hoile (1890) 18 R 27, discussed in W J Cullen, “Liferent subject to forfeiture” (1891) 3 JR 367. 135 Until such conveyance the forfeiture is enforceable by the executors holding the fee. It is always possible in a continuing trust for one of the real rights to be retained by the trustees.

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as at the date of vesting but also that he give a letter to trustees confirming this and promising to remain so in the future. 136 Whether the content of this particular condition would be regarded as acceptable and enforceable today is questionable, but the mechanism by which the testator sought to effect it appears to remain open for use. In another case a bequest of residue contained a condition that a beneficiary should reside in a particular location, not mortgage a particular item of heritable property and not sell certain movables described as “family relics”.137 An undertaking was granted by the beneficiary confirming that she would comply with the terms of the condition, but she appears to have repudiated this before the residue was paid over. The result, it appears, was a class (iv) forfeiture (and not a class (v)). However, had there been no repudiation the case report indicates the mechanism (the obligation in the undertaking) by which a class (v) forfeiture could have operated. Where this mechanism is employed, the right to enforce the separate obligation would be an asset of the testator’s estate. Given that the obligation may relate to matters occurring long after distribution, it would require to be granted in favour of the trustees of a continuing trust. Alternatively, it could be granted in favour of the executors with power to assign the same to the substitute beneficiary entitled to succeed if the underlying obligation were to be breached by the first beneficiary. The obligation may also be secured by appropriate means, such as by a heritable security over the subject of the bequest,138 and this security will also be an asset of the estate for distribution to an appropriate beneficiary. (4) Trusts The testator may seek to impose continuing controls on the future use of an item of the estate by bequeathing it to a separate trust.139 The beneficiaries in that separate trust will then have separate personal rights to require the trustees to implement the trust purposes. One of the beneficiaries in that separate trust may be the trustee.140 The beneficiaries in a separate trust will have the power to seek the removal of the trustees in cases of appropriate default. Although this removal effectively achieves the same end, it is not normally considered as a species of forfeiture. The device of securing control 136 Innes’s Trs v Innes 1963 SC 339. 137 Veitch’s Exr v Veitch 1946 SLT (Notes) 17, 1947 SLT 17. 138 E.g. Falconar Stewart v Wilkie (1892) 19 R 630. See also Nasmith v Jaffray (1662) Mor 2,070, 5,483 where caution for repayment was considered but not required due to the generality of the condition attached to the legacy. 139 Wilson & Duncan, Trusts paras 2.05-2.09. 140 E.g. MacPherson v MacPherson’s CB (1894) 21 R 386.

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by constitution of a mortis causa trust is older than might be suspected and probably originates in the ancient practice of a bequest to a pupil on condition that the testator had the right to nominate a tutor to the pupil to manage the subject of the bequest.141 This has been extended and transformed over the centuries into the extensively used discretionary accumulation and maintenance trusts, providing a balance of flexibility and control. However, these principally use class (ii) and (iv) forfeitures rather than class (v). Unfortunately, where a testator makes his own will without reference to legal advice, it remains the case that many testators are not fully aware of the technicalities. This does not stop them from trying to create complex schemes. It may be difficult to establish whether a particular beneficiary has been given a personal legacy subject to a multiplicity of conditions or has been given a legacy to be held in trust for certain purposes.142 I. LIMITS ON TESTAMENTARY FREEDOM Forfeiture clauses provide flexibility in relation to testamentary provision, and may be welcomed as such. But they also allow a testator to extend his influence beyond the grave in a way which may be pernicious. For that reason, testators are not entirely free in their use of such clauses. Nor are they wholly free to elide the effect of forfeiture events arising from the general law. Viewed in this way, the use of forfeiture clauses, and the avoidance of the legally implied forfeiture events, are aspects of testamentary freedom. (1) No freedom of testation As regards some legally implied forfeiture events, the testator cannot provide to contrary effect. Some forfeiture events are invariable and are imposed regardless of the wishes of the testator. One of these, the requirement that a beneficiary survive the testator, is inherent in the very concept of succession and a testator cannot leave a bequest to someone who has already died. Cases which have recognised the efficacy of a bequest left to a particular deceased person’s executors are not exceptions to this rule. Such a bequest is to the executors as individuals and not to the estate of the deceased. The holding of the office as beneficiary is the means of identifying the relevant beneficiaries and the benefit of the 141 Dishington v Hamilton (1558) Mor 8,913; Kirktons v Hunthill (1665) Mor 12,531; Craig, Jus Feudale 2.20.7; Stair 1.6.6; Bankton, Inst 1.7.7; Erskine, Inst, 1.7.2. 142 E.g. Dunbar v Scott’s Trs (1872) 10 M 982; Urquhart’s Exrs v Abbott (1899) 1 F 1149; Rigg’s Exx (1905) 13 SLT 144; Gow’s Trs v Gow 1912 2 SLT 256.

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bequest is confined to such executors who survive the testator.143 As regards the remainder of the invariable forfeiture events, the reason for their invariability is that the event is intended to reflect the wishes of society at large,144 rather than to effect the testator’s presumed wishes. To that extent these forfeiture events may be regarded as limitations on testamentary freedom. Into this category fall the statutory forfeiture events relative to bequests of crofts145 and agricultural tenancies.146 These are intended to ensure that a landlord is not saddled with an unsuitable tenant after the death of a good tenant and that general agricultural production does not diminish. The category of forfeiture events which the testator cannot avoid probably also includes the exclusion of those beneficiaries who have unlawfully killed him. Whether the Scots common law exclusion in this regard is based on concepts of public policy or personal unworthiness,147 it remains doubtful that a testator who temporarily survives the attempt to kill him can forgive the killer in the period between the attempt on his life and death.148 So, too, is there a public interest in the avoidance of fraud in the statutory exclusion from inheriting arising in the context of persons who subscribe a will on behalf of a testator declaring himself blind or unable to write.149 The testator cannot limit the effect of this exclusion by a provision in the will subscribed by the disqualified beneficiary. However, the testator is free to avoid the exclusion of the disqualified beneficiary by leaving a bequest in a wholly separate will signed by another party on his behalf.150 As regards some of the legally implied forfeiture events, the testator is free to provide to contrary effect. Examples include the forfeiture arising from the “full and final satisfaction” implied into wills where a party entitled to legal rights can elect between those legal rights and provisions in the will,151 and the now repealed provision that all property acquired by a wife after she obtains a decree of judicial separation will pass, if she dies intestate, to her heirs and representatives as if her husband were dead.152 In such cases the implication of law is probably intended to reflect what the reasonable testa143 McLaren, Wills & Succession vol 1 para 1412. 144 Or to protect the interests of a third party such as a landlord in a lease: Agricultural Holdings (Scotland) Act 1991 s 11; Crofters (Scotland) Act 1993 s 10. 145 Crofters (Scotland) Act 1993 s 10(1), (2), (4). 146 Agricultural Holdings (Scotland) Act 1991 ss 11(4), (6), 12(2), (3). 147 Hunter’s Exrs Ptr 1992 SLT 1141 at 1143 per Lord Justice Clerk Ross. 148 See the facts in Cross Ptr 1987 SLT 384. 149 Requirements of Writing (Scotland) Act 1995 s 9(4). 150 Paisley & De Waal (n 37) 203-204. 151 Succession (Scotland) Act 1964 s 13; Civil Partnership Act 2004 s 131. 152 Conjugal Rights (Scotland) Amendment Act 1861 s 6.

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trix would have provided had she thought about the matter directly and made express provision. Such a legal implication gives way to express provision by the testatrix, however unlikely that may be. (2) Absolute exclusions of forfeiture clauses The use of the five classes of forfeiture clause is subject to the established limitations on testamentary freedom. Just as a testator cannot defeat legal rights by means of a mortis causa deed so, too, he cannot render the claim to legal rights more precarious by the addition of forfeiture clauses beyond those implied by law.153 Such clauses can, of course, be introduced by an agreement entered into between the beneficiary and the testator prior to his death, but that is another matter. It has been established from an early date that a class (i) forfeiture clause cannot be imposed by the testator where this would preclude the vesting of legal rights of a child if that child were to be insolvent.154 The same applies where the testator’s child suffers from mental illness and the testator attempts to render the vesting of rights suspensive on the child’s restoration to sanity.155 The exclusion of a class (ii) forfeiture is also illustrated by the early decision that a testator cannot render the legal rights of his child subject to a suspensive condition as to the child’s good behaviour or require his child to accept a legacy instead of legal rights where the legacy is subject to a similar suspensive condition.156 Testators frequently leave bequests to relatives entitled to legal rights inducing them to renounce their legal rights in terms of a class (iii) forfeiture. However, the election between legal rights and the provision remains a choice for the beneficiary. There appears to be no reported cases of attempts to restrict a claim to legal rights by means of class (iv) or (v) forfeiture clauses. However, in principle, these devices would be equally limited in their effect. (3) Existing doctrines Some doctrines appear to have developed principally to restrain the nature of the conditions to which forfeiture clauses can be attached. The main limitations are that a condition will not be enforced if illegal, immoral or contrary to 153 McLaren, Wills & Succession vol 1 para 255. 154 Allan v Callender (1762) Mor 8,208. 155 Morton v Young 11 Feb 1813 FC. The case deals with the alteration of the succession of the child. 156 Anderson v Miller (1799) Hume 282; Hume, Lectures V, 168.

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public policy.157 The issues which have arisen for consideration include conditions relating to the beneficiary’s religion, marital status and residence with undesirable family members. It cannot be said that Scots law has developed or applied these doctrines in any coherent way, and the analysis of public policy in the context of conditions attached to legacies has been confused with the limitation of trust purposes by public policy. Public policy in respect of both is not necessarily identical. In none of the reported cases has there been any attempt to analyse the mechanism of the forfeiture. It is submitted that such analysis will assist in the application of these difficult doctrines. One could go further and assert that it is essential for a proper application of the doctrines. Consider, for example, restraints on religious freedom. A class (i) forfeiture in terms of which a bequest is left only to relatives adhering to a particular religious persuasion158 involves a lesser restraint on the personal life of a beneficiary than a class (ii) forfeiture by which he will inherit only if he becomes a member of the requisite faith. The latter may be seen as an inducement to change one’s religion to allow the bequest to vest, whereas the former is little more than identification of favoured beneficiaries.159 However, both of these pale in comparison with the interference in the life of the beneficiary that might arise if the law were to recognise a restraint on religious freedom in the form of a class (iv) or (v)160 forfeiture attached to a bequest. That said, a class (iv) forfeiture appears less harsh where the mortis causa trust is established to benefit clergy of a particular church.161 Which, if any, of these conditions and forfeitures relative to religion are acceptable in Scots law is largely an issue of policy to be determined, inter alia, in the context of the application of the provisions of the European Convention on Human Rights.162 That policy is yet to become fully clear. It is not the case, however, that one must seek a policy solution by which all or none of the forfeitures relative to religion are acceptable across the board. 157 See chapter 6. 158 E.g. Hays v Brown (1883) 10 R 460, but the forfeiture there also purported to be a class (v) forfeiture. 159 Craig, Jus Feudale 3.3.2 lists among the causes justifying the disherison of a son the fact that the son’s children were not brought up in the faith of the Roman Catholic church. 160 Innes’s Trs v Innes 1963 SC 339. 161 E.g. the forfeiture of annuity benefits for those who are “sentenced to deprivation or degradation under the canons of the Church or who shall forsake its communion”: Scottish Episcopal Clergy Widows’ and Orphans’ Fund Order Confirmation Act 1903, 3 Edw 7 c.cxlix, sch para 37. 162 Particularly articles 8 (right to respect for private and family life), 9 (freedom of thought, conscience and religion), 11 (freedom of assembly and association) and 12 (right to marry and found a family).

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Such forfeitures are not always intended to perpetuate prejudice beyond the grave, but neither do all of them have beneficent motives and effects. A more flexible and graduated approach is possible and the analysis set out above assists the development of this. It remains to be seen whether the Scottish courts will develop canons of construction in terms of which a forfeiture clause relative to religious adherence that is potentially capable of falling within more than one class would be restricted to the one least prejudicial to the grantee.163 J. FLEXIBILITY Flexibility may exist in other respects. The legally implied forfeitures generally164 result in a total loss of the rights to which they apply, leaving the beneficiary with nothing. As such they are a blunt tool to deal with the infinite variety of human behaviour. A limited flexibility has been introduced by statute, permitting judicial modification of forfeiture where the deceased has been unlawfully killed by a beneficiary.165 However, this applies to none of the other legally implied forfeitures166 and to none at all of the forfeiture clauses created by a testator. A testator is generally free to craft a forfeiture clause as he wishes. For example, he can provide for the reduction of the value of a bequest on the occurrence of certain events167 or its conversion into a lesser right.168 So too can he provide that, when a forfeiture operates, the beneficiary is to receive a stated level of monetary compensation.169 A forfeiture clause may be designed to operate only for a limited time.170 It may apply to all of the provisions in a will or only to some of them, although the latter may lead to unanticipated results.171 Sometimes a testator may be more severe. He may utilise the 163 E.g. the Manx case: In re Goldie-Taubman (1961-1971) Manx Law Reports 244. However, there is authority to the effect that, in contrast to English law, Scots law does not impose a more demanding test for resolutive than for suspensive conditions: Balfour’s Trs v Johnston 1936 SC 137 at 145 per Lord Morison, 146 per Lord Moncrieff. 164 An exception may be the rule that illegitimate persons and their paternal relatives do not forfeit their right to inherit from a deceased’s estate, but lose the right to pursue a trustee or executor who distributes the estate without having ascertained that they exist: Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 s 7. 165 Forfeiture Act 1982 ss 1, 2, 5; Cross Ptr 1987 SLT 384; Jackson Ptr 1989 GWD 22-947; Gilchrist, Ptr 1990 SLT 494. For English law, see Re K, decd [1985] 2 WLR 262. 166 Including the statutory exclusion under the Parricide Act 1594 c 30. 167 E.g. Miller’s Trs v McLellan 1911 1 SLT 444; Barker v Watson’s Trs 1919 SC 109. 168 E.g. a trustee having power to alter a right from fee to liferent: Bell, Prin § 1883. 169 E.g. Baiky v Baiky (1693) 4 BS 68. 170 E.g. Murray’s Exrs v Murray (1868) 5 SLR 209. 171 Macdonald’s Trs Ptrs (1899) 7 SLT 445; Naysmith v Boyes (1899) 1 F (HL) 79.

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flexibility of forfeiture clauses so that there is forfeited, not only the bequest of the beneficiary who breaches the condition, but also any bequest to his issue.172 Such a corruption of blood never applied to any of the legally implied forfeiture events except the statutory exclusion of killers173 – and even here it has long been abolished.174 K. CONCLUSIONS The analysis offered in this chapter has been exploratory, but some broad conclusions are possible. Despite a long tradition of forfeiture clauses and forfeiture events, their nature in Scots law remains obscure. This chapter has shown that a unitary approach to forfeiture clauses and events is possible, although these two matters have traditionally been treated separately. An understanding of the rights emerging and being transferred during the process of executry conveyancing is essential to shed light on these matters and for a more systematic development of the law. Consequently, the study of succession must be reunited with the study of property law. A first step is to regard the law of succession as more than rules of distribution, but as extending to a study of vesting and of the role of executors.

172 Ballantyne’s Trs v Ballantyne 1952 SC 458. 173 Parricide Act 1594 c 30; D Hume, Commentaries on the Law of Scotland respecting Crimes (1819) vol 1 285-286. Under the common law in Pakistan the killer and his progeny are excluded: Beguman v Saroo 1964 Pakistan Legal Decisions (WP) Lahore 451. 174 Criminal Justice (Scotland) Act 1949 s 15(1); Meston et al (n 26) para 672. E.g. Garvie’s Trs v Still 1972 SLT 29 where the estate of the deceased was wound up on the basis that it was inherited by the son of the killer and victim.

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8 Revocation of Wills by Changed Circumstances M C Schoeman-Malan A. INTRODUCTION (1) The nature of revocation (2) Historical background (a) Revocation by birth of a child (b) Revocation by marriage and birth of a child (c) Revocation by time (3) The modern law in overview (a) South Africa (b) Scotland (c) The Netherlands (d) England B. REVOCATION BY BIRTH OF A CHILD (1) South Africa (2) Scotland (3) The Netherlands (4) England C. REVOCATION BY MARRIAGE (1) South Africa (2) Scotland (3) The Netherlands (4) England D. REVOCATION BY DIVORCE (1) England (2) Scotland (3) The Netherlands (4) South Africa E. CONCLUSION

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A. INTRODUCTION (1) The nature of revocation Revocation of a will, which is the converse of the initial act of making, proceeds on the broad principle of freedom of testation.1 The subject may be divided according to whether the revocation is voluntary or involuntary. Voluntary revocation is determined by the intention of the testator.2 The basis of Roman and Roman-Dutch law was that voluntary revocation could be achieved, expressly or by implication, by a formal will or document3 as well as by destruction of the original will.4 A will may also be revoked involuntarily, by operation of law, when certain circumstances occur.5 Involuntary revocation does not seem to require an act of free will or specific intention to revoke. Rather the intention to revoke is implied.6 Hughes explains that involuntary revocation is based on a policy of requiring a person to reconsider his or her social obligations in the light of a change in circumstances.7 Cases of involuntary revocation by changed circumstances include revocation by the birth of a child, revocation by subsequent marriage, revocation by divorce or annulment of marriage, and certain other forms of automatic lapsing of a will. This chapter considers revocation by changed circumstances in the 1 Broad but not unqualified. For a brief discussion of restrictions on freedom of testation in South African and Scots law, see V V Palmer (ed), Mixed Jurisdictions Worldwide: the third legal family (2001) 193-194, 234. 2 Parry and Clark, The Law of Succession, 15th edn, by R Kerridge assisted by A H R Brierley (2002) (henceforth Parry & Clark, Succession) 130. 3 H R Roby, Roman Private Law, vol I (1902) 207. W W Buckland, A Text-Book of Roman Law from Augustus to Justinian, 3rd edn, by P Stein (1963) 332 refers to the rule of classical law that a will could only be revoked by making another will. See Gai Inst 2.144, 151; J Inst 2.17.2. For the rules in Roman-Dutch Law see J van der Linden, Koopmans Handboek, trans G T Morice, 2nd edn (1922) 94 (henceforth Van der Linden, Koopmans Handboek). See also R W Lee, An Introduction to Roman-Dutch Law, 5th edn (1953) 371 (henceforth Lee, Introduction), referring to Voet 28.3.8; R W Lee, A M Honoré and T W Price, The South African Law of Property, Family Relations and Succession (1954) 193 (henceforth Lee et al, Property). 4 Lee, Introduction 371, referring to Grotius 2.24.15 and Voet 28.4.1. Animus revocandi is required: see Gai Inst 2.151; Lee et al, Property 193 referring to Grotius 2.24.10 and Voet 28.3.1. For the situation in South African law, see M J de Waal and M C Schoeman-Malan, Introduction to the Law of Succession, 3rd edn (2003) 84 (henceforth De Waal & Schoeman-Malan, Succession). Initially in Roman law a will was not revoked by destruction: see Roby, Roman Private Law 209; Buckland, Text-Book 333. 5 For Roman law, see R W Leage, Roman Private Law: founded on the “Institutes” of Gaius and Justinian, 3rd edn (1920) 239; P van Warmelo, ‘n Inleiding tot die Studie van die Romeinse Reg (1971) 230 (for capitis deminutio). 6 R A Hughes, “Mutual wills and contracts not to revoke – the case of voluntary and involuntary revocation” (1999) 3 Journal of South Pacific Law 1. 7 Hughes at 1.

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context of two mixed jurisdictions (South Africa and Scotland), one jurisdiction from the Common Law world (England), and one from the Civil Law world (Netherlands). (2) Historical background (a) Revocation by birth of a child The source of lapsing of a will by the birth of a child appears to be the following passage by Cicero in his De Oratore: For who is it that would seek to inherit under the will which the father of the family made before his son was born? Nobody; because it is agreed that a will is broken through lack of knowledge.8

Roby explains that a will otherwise properly made is broken (rumpitur) by the birth (agnatione) of a son.9 Buckland, recounting the position in Roman law, states that: “We know that a will could be irritum or ruptum by e.g., supervening loss of capacity to have a will or birth of a postumus not provided for.” 10 (b) Revocation by marriage and birth of a child According to Leage: A will was also ruptum by the birth of a postumus suus or by a person becoming intestate heir after the date of the will in some other way, e.g. by marriage in manum or by arrogation; but, in the time of Justinian, a will was no longer necessarily broken by birth of a postumus, because, as above stated, such persons might be instituted or disinherit by anticipation, and marriage in manum was obsolete.11

Watson explains that a valid will would become void if a suus heres was added to the family and that the claim that the testamentum was ruptum was based on the coemption of the testator and his wife after the will was made.12 Coemptio was a form of marriage and this explains the development that the will was revoked by birth after the marriage (coemptio).13 8 Cicero, De Oratore 1.57.241, referred to in W A Graunke and J H Beuseher, “The doctrine of implied revocation of wills by reason of change in domestic relations of the testator” (1930) 5 WisLRev 388. As Alan Watson observes (The Law of Succession in the later Roman Republic (1971) 43), “Cicero seems to take it as a matter beyond all doubt in law that a testamentum is ruptum by the birth of a filius after it is made”. 9 Roby, Roman Private Law (n 3) 207. 10 W W Buckland, The Main Institutions of Roman Private Law (1931) 183. Buckland, Text-Book (n 3) 323 mentions that the will was void whether the postumus was a male or female child or grandchild. 11 Leage, Roman Private Law (n 5) 239. 12 Watson, Succession 61, referring to Laudatio Turiae 1.13 ff. 13 For a discussion of coemptio, see Gai Inst 1.113; Van Warmelo, Romeinse Reg (n 5) 73.

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The position in Roman-Dutch law, according to Van der Linden, was that if an unmarried person made a will and then married and had legitimate children, the birth of a child annulled the will.14 But as Lee points out, Van der Linden’s view is not supported by authority, and it does not appear that in the modern law, in the absence of statutory provision, a will is revoked either by marriage alone or by marriage followed by the birth of issue.15 (c) Revocation by time In AD 418 Theodosius the Great mentioned that a will was ipso facto revoked by lapse of ten years, apparently on the view that circumstances must have so changed that the will could no longer represent the testator’s wishes.16 Justinian substituted the more rational rule that a will could be informally revoked after ten years by a declaration in court or before three witnesses.17 Grotius, following Roman law, said that a will was revoked by a declaration to the court (inter acta), or before three witnesses, that the testator did not desire his will to stand, provided ten years had lapsed since the date of its execution.18 So there are indications that in Roman-Dutch law a more informal manner of revocation was also recognised. (3) The modern law in overview (a) South Africa To find the legal forms of revocation in South Africa one has to go back to the common law, which is the Roman-Dutch law before and since 1652.19 An express clause of revocation can be included in a subsequent will, codicil, revocatory document, or ante-nuptial contract.20 Physical or symbolic destruction is, 14 Van der Linden, Koopmans Handboek 94: “If a person when unmarried makes a will, and afterwards marries the birth of the children causes the will to become void.” See also Shearer v Shearer’s Executors 1911 CPD 813; B Beinart, “Testamentary form: Wills Act, 1953” (1953) 70 SALJ 159 and 280 at 297. 15 Lee, Introduction 372. N J van der Merwe and C J Rowland, Die Suid-Afrikaanse Erfreg, 6th edn (1990) 194 refer to Roman-Dutch law (Voet 5.2.8; Van der Linden, Koopmans Handboek 1.9.11), and explain that Van der Linden’s reference to Van der Keesel, Theses selectae juris Hollandici et Zelandici, thesis 306 is not clear as Van der Keesel only mentioned the situation where a child is born to the testator. 16 Codex Theodosianus 4.4.6. The same rule was enacted by Honorius: see J A C Thomas, Textbook of Roman Law (1976) 496. 17 C 6.23.27.2. 18 Grotius 2.24.7 refers to C 6.23.27. 19 Grotius 2.24.3-9; Voet 28.3.1; J Sonnekus, “Vereistes vir testament herroeping” 1982 TSAR 110 at 113. 20 Grotius 2.24.13-15; Voet 28.4.1. In some instances an informal approach was allowed (e.g. destruction where no formal requirements had to be met): De Waal & Schoeman-Malan, Succession 85.

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equally, an act of revocation.21 In addition, a will is revoked tacitly where the testator’s intention to revoke is deduced from an act (most notably, execution of a subsequent conflicting will) or by alienation of the bequeathed asset.22 These common law rules remain in force today, for although the uniform Wills Act 7 of 1953 adopted the (statutory) rules of English law as to execution of wills, it did not do so in respect of revocation.23 When the subject of revocation came to be considered by the South African Law Commission in the late 1980s,24 some commentators urged that the methods of revocation should be set out in statute as had been done in other countries such as the Netherlands, England, and a number of Commonwealth countries.25 Unfortunately, this opportunity to bring clarity to the law was not taken. Instead, the Law Commission took the view that a new power for courts to condone certain cases of revocation not recognised at common law – subsequently introduced as section 2A of the Wills Act – would resolve most of the interpretation problems which arose through uncertainty.26 Thus far only voluntary revocation has been mentioned. At one time involuntary revocation was unknown in South Africa except for the, now repealed, provision of the Wills Act by which a soldier’s will lapsed one year after the completion of active service.27 Following the Law Commission’s review, 28 however, the Wills Act was amended to introduce revocation by divorce.29 (b) Scotland Scots law also has no statutory provisions for revocation of wills. Voluntary revocation can be by physical or symbolic destruction,30 or by later will.31 The 21 De Waal & Schoeman-Malan, Succession 87. 22 De Waal & Schoeman-Malan, Succession 95. See also Scottish Law Commission, Report on Succession (Scot Law Com No 124, 1989) (henceforth Scottish Law Commission, Succession) para 4.20. 23 Lee, Introduction 371. For a discussion of the common law, see M C Schoeman, Wysiging en Herroeping van Testament, LLD thesis, University of Pretoria (1990) 377. 24 South African Law Commission, Review of the Law of Succession: formalities of a will, alteration and revocation of wills, disqualification from inheritance, substitution and the succession rights of adopted children (Project 22, 1991) (henceforth South African Law Commission, Succession). 25 Schoeman, Herroeping (n 23) 377. 26 South African Law Commission, Succession paras 3.32-3.38; Wills Act 7 of 1953 s 2A. See also Quebec Code Civil art 771; Scottish Law Commission, Succession para 4.20. 27 Wills Act 7 of 1953 s 3(2). South African Law Commission, Succession paras 2.129-2.136 recommended that s 3 of the Wills Act be repealed, a recommendation given effect to by the Law of Succession Amendment Act 43 of 1992 s 5. 28 South African Law Commission, Succession paras 3.52-3.63. 29 Wills Act 7 of 1953 s 2B. The provision took effect on 1 October 1992. For further discussion, see D(4) below. 30 D R Macdonald, Succession, 3rd edn (2001) 78-80 (henceforth Macdonald, Succession). 31 Macdonald, Succession 82-84.

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act of destruction must be conducted by the testator or by someone on his behalf.32 Revocation by implication would include a later inconsistent will.33 Involuntary revocation occurs only on the birth of a child, under the Civilian conditio si testator sine liberis decesserit.34 However, in a review completed in 1990 but not so far implemented, the Scottish Law Commission recommended that a will should be revoked by divorce but no longer by the birth of a child.35 (c) The Netherlands Historically, revocation of wills in the Netherlands was strongly influenced by the French Code civil. The current rules are contained in Book 4 of the new Civil Code,36 which came into operation on 1 January 2003.37 Methods of revocation include revocation by subsequent will,38 revocation by destruction of a codicil,39 and revocation by divorce.40 (d) England Revocation in England is regulated by the Wills Act 1837 (as amended).41 In terms of that Act a will is revoked by its destruction or by another will, codicil or duly executed written declaration.42 In addition, a will is normally revoked by marriage or by entering into a civil partnership,43 or by divorce or the dissolution of a civil partnership.44 These rules are subject to section 19 which provides that: “No will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances”.

32 Macdonald, Succession 78-80. 33 Macdonald, Succession 83; W M Gloag and R C Henderson, The Law of Scotland, 11th edn, by L Dunlop et al (2001) para 45.07. 34 Macdonald, Succession 84. 35 Scottish Law Commission, Succession paras 4.29-4.49. The Scottish Law Commission is now to return to the subject of succession: see Seventh Programme of Law Reform (Scot Law Com No 198, 2005) paras 2.21-2.30. 36 The Burgerlijk Wetboek (henceforth BW). 37 The new Dutch law of succession is the subject of chapter 11. 38 BW art 4:42-2. See H Warendorf and I Curry-Sumner, Inheritance Law Legislation of the Netherlands (2005) 25. A testator can revoke a testamentary disposition at any time. 39 BW art 4:97. 40 BW art 4:52, discussed below. 41 Parry & Clark, Succession 123. For revocation before the 1837 Act, see Vynior’s Case (1609) 8 Co Rep 816. 42 Wills Act 1837 s 20. 43 Wills Act 1837 ss 18, 18B. A civil partnership is a same-sex partnership entered into under the Civil Partnership Act 2004. 44 Wills Act 1837 ss 18A, 18C.

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B. REVOCATION BY BIRTH OF A CHILD (1) South Africa In South Africa the principle of testamentary freedom means that a child can be disinherited, and is not entitled to a legitimate portion.45 For that reason it has been argued that if children were instituted by name without mention of a later-born child, some method should be available for rectification of the will.46 In this regard it must be remembered that a child has a claim for maintenance against the estate of a deceased parent.47 However, in its review of the law, the South African Law Commission did not recommend that a will should lapse on the birth of a child.48 (2) Scotland In Scots law a will is revoked by the subsequent birth of a child49 to the testator if the will is a universal settlement and makes no provision for the child.50 This is based on a fictitious presumption that the testator would have provided for later-born children if he had thought about them51 and would not have wished the will to remain in force.52 This presumption can be rebutted by proof that the omission was deliberate or by circumstances showing the testator’s intention that the will should stand notwithstanding the birth of the child.53 It is not, however, rebutted by mere passage of time between the child’s birth and the testator’s death, and evidence of a conscious and positive decision by the testator is probably necessary.54 The presumption may be rebutted if the testator had made an inter vivos provision for the child. The rule does not operate automatically but requires an action of reduction brought by the child.55 On reduction the will falls in its entirety, 45 Van der Linden, Koopmans Handboek 95. 46 M C Schoeman, “Outomaties verval van ‘n testament weens veranderende omstandighede” 1991 De Jure 44 and 268. 47 Beinart (n 14) at 296 felt that a child can only rely on a vague and inadequate claim out of the deceased parent’s estate. See In re Visser 1948 (3) SA 1129 (C); also Palmer, Mixed Jurisdictions (n 1) 193. 48 South African Law Commission, Succession para 3.66; Sonnekus (n 19) at 111. 49 Whether legitimate or illegitimate: Gloag & Henderson, Law of Scotland (n 33) para 45.08. 50 Macdonald, Succession 84. This is the so-called conditio si testator sine liberis decesserit. 51 The presumption can be rebutted: Macdonald, Succession 84. 52 Gloag & Henderson, Law of Scotland para 45.08. 53 Gloag & Henderson, Law of Scotland para 45.08. 54 In Milligan’s JF v Milligan 1910 SC 58 ten years had passed but the presumption was not rebutted. Compare Stuart-Gordon v Stuart-Gordon (1899) 1 F 1005 where the presumption was rebutted even though the testatrix died shortly after her daughter was born. 55 Stevenson’s Trs v Stevenson 1932 SC 657. The action cannot be brought on the child’s behalf by a representative.

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causing an intestacy in which the child can make an appropriate claim. As previously mentioned, the Scottish Law Commission has recommended that the rule be abolished.56 (3) The Netherlands The most important change in the new Dutch law of succession is that the surviving spouse will in general inherit the whole estate of the deceased, while the children will have a claim against the surviving spouse which is not payable during the spouse’s lifetime.57 This means that the surviving spouse is able to dispose of the inherited estate freely during his or her lifetime. The only way of avoiding this rule is to draw up a will. Wills are not revoked by the subsequent birth of a child. (4) England Until 1838 a man’s will was revoked by marriage coupled with the birth of children of that marriage,58 but today there is no revocation in English law by the subsequent birth of a child.59 However, dependants of the testator can claim against the estate: the Inheritance (Family Provision) Act 1938 made provision for certain people to apply to the court for maintenance out of the estate, and the current legislation is the Inheritance (Provision for Family and Dependants) Act 1975.60 C. REVOCATION BY MARRIAGE (1) South Africa In South Africa it is necessary to distinguish between the law before and after the Wills Act 7 of 1953 came into operation on 1 January 1954. It seems as if the rule in Roman-Dutch law, that a will was tacitly revoked if the testator married,61 or married and had children,62 was not applied in 56 Scottish Law Commission, Succession paras 4.46-4.49, and cl 15 of the Commission’s draft bill. 57 E W J Ebben, Inleiding nieuw erfrecht (2001) 155. See further chapter 11 below. 58 E Durfee, “Revocation of wills by subsequent change in the condition or circumstances of the testator” (1942) 40 MichLRev 406. It was presumed that the deceased intended to revoke his will to protect his heir and not his wife. 59 See Wills Act 1837 s 19; Law Reform Committee, 22nd Report: The Making and Revocation of Wills (Cmnd 7902: 1980). 60 As amended by the Law Reform (Succession) Act 1995 which applies to deaths after 1 January 1996. 61 Ludwig v Ludwig’s Exr (1848) 2 Menz 449. 62 Shearer v Shearer’s Exrs 1911 CPD 813; Beinart (n 14) at 297 n 44; Lee et al, Property (n 3) 194.

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South Africa. Morice63 explains: As legitimate portions have been abolished in South Africa, it would appear that the fifth mode in which a will becomes invalid does not apply, seeing that a will now holds good, even though nothing is left to the children of the testator. It is, however, desirable that the existing law should be altered by legislation. It may very well happen that a person makes a will when a bachelor, and without a view to marriage, and forgets to alter it after he has married. It this way his wife and children will be disinherited contrary to his wish or intentions. In English law, although there is no such thing as legitimate portions, a will is revoked by the testator afterwards marrying.

Section 8 of Law 2 of 1868 (Natal)64 made provision for revocation by marriage.65 Under the Act, a will lapsed on remarriage unless it referred to future marriage in a manner which indicated the testator’s intention that the will should not lapse.66 In the other provinces, however, marriage continued to have no effect on a previous will.67 When the Wills Act came into operation in 1954 it repealed the Natal Law 2 of 1868, bringing Natal into line with the rest of the country.68 That remains the law today. Later, Hahlo was to argue in favour of revocation by subsequent marriage, stating that it would have been better to extend the Natal rule to the rest of South Africa. He mentioned the situation where an unmarried person makes a will in favour of a relative or friend and, having forgotten all about it at the time of his subsequent marriage, omits to revoke it or to make a new will, with the result that at the person’s death the estate goes to a person whom he no longer intended to benefit.69 But the South African Law Commission70 thought that revocation by subsequent marriage would restrict freedom of testation,71 that it could not be predicted what the testator would have 63 Van der Linden, Koopmans Handboek 95. 64 Based on the English Wills Act 1837. 65 A joint will was not revoked by the marriage of a surviving spouse. The Natal Act applied if a testator married after 1 January 1954 but executed a will before that date: see In re Estate Reynolds 1956 (1) SA 1 (N); Mntaka v Mntaka and Another 1964 (4) SA 314 (N). 66 Lee et al, Property (n 3) 194; Van der Merwe & Rowland, Erfreg 194. 67 Shearer v Shearer’s Executors 1911 CPD 813; Beinart (n 14) at 297 n 44; Lee et al, Property 194 68 See Wills Act 7 of 1953; Shearer v Shearer’s Executors 1911 CPD 813; M M Corbett, G Hofmeyr and E Kahn, The Law of Succession in South Africa, 2nd edn (2001) 104 (henceforth Corbett et al, Succession); Schoeman (n 46) at 45; Van der Merwe & Rowland, Erfreg (n 15) 194. 69 H R Hahlo, “Revocation of wills by divorce” (1964) 81 SALJ 381 at 382 was in favour of retaining revocation by subsequent marriage. 70 South African Law Commission, Succession paras 3.43-3.50 concluded that revocation by subsequent marriage was not justified. For critical comment, see Schoeman (n 46) at 274-275; J Sonnekus, “Voorgestelde statutere wysiging van die erfreg” 1992 TSAR 159 at 169. 71 The Roman-Dutch law probably never made provision for a legitimate portion for the surviving spouse: see Palmer, Mixed Jurisdictions (n 1) 194.

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provided in his will, and that it would be difficult to formulate appropriate rules.72 (2) Scotland In Scotland marriage has no effect on a will, although a spouse, like a child, has a right to a fixed share of the deceased’s moveable estate.73 No change was recommended by the Scottish Law Commission in its review of succession law, because the arguments against change were said to be at least as persuasive as the arguments in its favour, and consultation had revealed a majority against change.74 The main argument against accepting revocation by subsequent marriage was that automatic revocation might frustrate the intention of the testator.75 (3) The Netherlands In the Netherlands, as in South Africa and Scotland, there is no revocation by subsequent marriage. Marriage between persons of the same sex has been lawful in the Netherlands since 1 April 2001.76 At the death of the first dying, the surviving spouse is protected and provided for.77 (4) England Under the general and ecclesiastical law of England, a will was revoked by marriage in certain circumstances.78 Before 1837 a woman’s will was revoked by her marriage,79 but men’s wills were revoked only if marriage was followed by the birth of children of that marriage.80 Since 1 January 1838 the position has been governed by section 18 of the Wills Act 1837. As a general rule, marriage automatically revokes any will which was made by either party

72 Corbett et al, Succession 104 n 135 notes that the Commission drew attention to the child’s claim for support from the estate and the benefit afforded by the Maintenance of the Surviving Spouses Act 27 of 1990. 73 Widowed spouses, children and other descendants have “legal rights” – a fixed share of the moveable property (i.e. anything other than land) which they are entitled to claim. 74 Scottish Law Commission, Succession para 4.33. 75 Scottish Law Commission, Succession para 4.31. For arguments in favour of revocation see para 4.30. 76 Same Sex Marriage Act of 21 Dec 2000. 77 Ebben, Erfrecht (n 57) 155. 78 The principles and their historical derivation are discussed in Graunke & Beuseher (n 8) at 387. 79 Hodson v Lloyd (1789) 2 Bro CC 534 (29 ER 293). 80 See Law Reform Commission of New South Wales, Report on Wills: Execution and Revocation (No 47, 1986) para 9.2.

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before marriage.81 It is immaterial whether the party intended the will to be revoked by the marriage or was even aware of the rule. Section 18 is supplemented by other rules, and is subject to exceptions.82 D. REVOCATION BY DIVORCE (1) England Until modern times divorce or nullity had no effect on a will under English law, 83 but the position was altered with effect from 1 January 1983 by a new section (18A) which was inserted into the Wills Act 1837.84 This followed a recommendation of the Law Reform Committee.85 Section 18A nullifies any devise or bequest to a former spouse but without affecting devises or bequests to other people. As originally enacted, section 18A provided for the devise or bequest to “lapse” but did not make clear what was then to happen to the property in question.86 The section has since been amended so that the former spouse is treated as having died on the date on which the marriage came to an end.87 Under the Civil Partnership Act 2004 the formation and dissolution of a civil partnership has the same effect as marriage on the revocation of wills.88 (2) Scotland The Scottish Law Commission has recommended that legacies to spouses should be revoked by divorce,89 but so far the recommendation has not been 81 See s 18 read with s 177 of the Law of Property Act 1925 if the will was made before 1 January 1983, and s 18 substituted by the Administration of Justice Act 1982 if the will was made thereafter. 82 See Parry & Clark, Succession 124 for a discussion of the exceptions to the general rule (wills made in contemplation of marriage and exceptions to certain appointments made by will, and the distinction between wills made before and after 1983). 83 Re Boddington (1884) 22 ChD 685; N v M (1885) 1 TLR 523; Parry & Clark, Succession 311. 84 By s 18(2) of the Administration of Justice Act 1982, applying to deaths on or after 1 January 1983. 85 Law Reform Committee, Making and Revocation of Wills (n 59). 86 A difficulty which was highlighted by Re Sinclair [1985] Ch 446. T by his will gave his whole estate to his wife or, if she predeceased him or failed to survive him for one month, to Q. Subsequently they were divorced so that, in terms of s18A, the bequest to his wife failed. T died and his former wife survived him for more than a month. The court held that because the former wife survived for a month, the contingent gift to Q failed. 87 Law Reform (Succession) Act 1995 s 3. This applies to deaths on or after 1 January 1996. 88 Civil Partnership Act 2004 Sch 4 para 2, introducing ss 18B and 18C into the Wills Act 1837. For other jurisdictions, see Alberta Law Reform Institute, Report on Effect of Divorce (No 72, 1994). 89 Scottish Law Commission, Succession para 4.45, and cl 14 of the Commission’s draft bill.

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implemented. Thus the position remains that a will is unaffected by divorce. (3) The Netherlands Article 4:52 of the Dutch Civil Code provides that: A disposition made in favour of the person with whom the deceased was married at the time of making the last will or with whom an engagement to marry had already been made shall lapse by the divorce or judicial separation that took effect thereafter unless the contrary may be deduced from the last will itself.

The Supreme Court90 has explained that: This rule is presented as a special instance of the new misrepresentation rule of article 4:43 which holds that a last will made under the influence of an incorrect assumption is voidable only when the incorrectly assumed circumstance, indicated in the will, was the cause of the bequest and the testator would not have made the bequest had he or she known the incorrectness thereof.91

The content of this provision is more or less the same as the South African version (explained below), except that in South African law the surviving spouse is regarded as being deceased and the word “lapse”, which as already mentioned gave problems in English law, is avoided. In fact it seems as if the principle that the testator would not want a former spouse to inherit was accepted even before the implementation of article 4:52. In 1997 the Supreme Court confirmed a Court of Amsterdam ruling that there was no will in circumstances where the testator had bequeathed his estate to his wife and sons and later divorced without revoking or altering his will.92 The ruling, however, was widely criticised on the basis that a will is not to be interpreted as if it was executed for a specific situation.93 (4) South Africa Revocation by divorce was introduced to South Africa by the Law of Succession Amendment Act 43 of 1992, following a recommendation by the South African Law Commission. The Act inserts a new section 2B into the Wills Act 7 of 1953 with effect from 1 October 1992. The provision is a response to the increased incidence of divorce. Other factors influencing the Law Commission were that on divorce a final distribution of property is made, that a further benefit would therefore be an unintended benefit, and that ignorance or the 90 91 92 93

I.e. the Hoge Raad. 3 December 2004 (NJ 2005 58) (author’s translation). 31 January 1997 (NJ 1998 327). S Perrick, “Wanneer is een uiterste wil nog duidelijk?” (1997) 6275 WPNR.

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emotional stress accompanying divorce could cause the testator to fail to alter or revoke his will.94 Corbett et al add: On divorce a final distribution of property is made, and an additional testamentary benefit to the divorced spouse would normally be an unintended overprovision; ignorance or emotional stress could cause the divorced testator to fail to alter his or her will. Unlike the position with a marriage, it was reasoned, once it is accepted that the testator no longer intends to benefit his or her former spouse it is normally possible to determine the changes the testator would probably make to the will.95

Section 2B is in the following terms: If any person dies within three months after his marriage was dissolved by a divorce or annulment by a competent court and that person executed a will before the date of such dissolution, that will shall be implemented as it would have been implemented if his previous spouse had died before the date of the dissolution concerned, unless it appears from the will that the testator intended to benefit his previous spouse notwithstanding the dissolution of his marriage.

The will is thus interpreted as if the former spouse had predeceased the testator on the date of the divorce or annulment.96 However, the provision is subject to the qualification that, if it emerges from the will that the testator still wished to benefit his former spouse in spite of the divorce or annulment, then the will is not revoked. The testator can thus specifically indicate that the divorced spouse should continue to benefit. The will is revoked only if the testator dies within three months of divorce. The reason for the restriction is unclear. In its report the Law Commission said that if a will was not amended within three months, it was arguable that the testator intended to benefit the former spouse after all.97 Corbett et al suggest that the Commission had only limited enthusiasm for adjusting wills to changed circumstances, and so was not prepared to recommend a disinheritance which was permanent in nature.98 But whatever the reason, the result is to nullify the effectiveness of section 2B to a very great extent. Indeed it is doubted whether the section has ever been successfully invoked. For as Corbett et al point out, section 2B does not help with the type of case that had caused problems in the past.99 When one looks at some of the reported decisions before the commencement of section 94 95 96 97 98 99

South African Law Commission, Succession paras 3.52-3.63. Corbett et al, Succession 105 n 137, with reference to Sonnekus (n 70) at 169. South African Law Commission, Succession para 3.63. South African Law Commission, Succession para 3.63, and cl 4(b) of the Commission’s draft bill. Corbett et al, Succession 105. Corbett et al, Succession 105.

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2B, it becomes apparent that divorce is not the stage at which a testator is thinking about future death, and that in practice the issue arises only on remarriage or even long thereafter.100 In consequence, it has become necessary to use section 2A, which gives the court power to condone acts of revocation, to reach a result which it should have been possible to achieve by section 2B.101 The cases illustrate some of the difficulties. In Webster v The Master102 spouses executed a joint will in which the survivor was appointed as sole heir. They divorced in 1992 and the former husband died a year later when he was still in the process of making another will. The facts of Bekker v Naude103 are strikingly similar.104 In Henwick v The Master105 the testator remarried following a divorce some eight years earlier. Two days after the wedding the testator and his new wife went to the bank where they were advised to draw up a new will, but this was never signed. On the testator’s death the court decided that the original, pre-divorce will remained valid.106 E. CONCLUSION If one looks at the fact patterns that have led to litigation in South Africa in the recent past, it is clear that divorced persons do not take the trouble to amend their wills immediately after the divorce. Yet the reason for this is seldom that the testator intends the former spouse still to inherit. If the South African experience is typical, what may happen next is that, following remarriage, the testator decides to benefit the new spouse but fails to execute a will. In South Africa the very fact of delay excludes the operation of the principle of revocation by divorce contained in s 2B of the Wills Act 7 of 1953, with the result that there must be an application for condonation under sections 2(3) or 2A. However, in jurisdictions such as England and the Netherlands, where a will is revoked by divorce without restriction as to time, the revocation takes effect in respect of bequests to the former spouse. Senekal v Meyer 1975 (3) SA 372 (T); Marais v The Master 1984 (4) SA 288 (D). For an unsuccessful attempt to use s 2A, see Letsekga v The Master 1995 (4) SA 731 (W). 1996 (1) SA 22 (D). 2002 (1) SA 264 (W), affd 2003 (5) SA 173 (SCA). Importantly, Marais J was of the opinion, obiter (275F-276B) “… that it was rather one of those circumstances in which the testator ‘caused (the document) to be drafted’ as envisaged in s 2A.” However, an application under s 2A was not before the court and the point was also not pursued any further. 105 1997 (2) SA 326 (C). 106 See also MacDonald v The Master 2002 (5) SA 64 (O).

100 101 102 103 104

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The patrimonial consequences of divorce itself are determined either by settlement between the parties or by judgment of a court. Common sense suggests that a divorced testator would not normally wish the former spouse to inherit to the exclusion of the current spouse or the children from their marriage. Yet in both South Africa and Scotland the existing legal position often has exactly this effect. Revocation by marriage is less commonly found than revocation by divorce: of the jurisdictions under discussion only England provides that an existing will is revoked by marriage of a testator. While a testator is of course entitled to disinherit his or her spouse and descendants in a will made after marriage, a rule which provides for automatic revocation of any will made prior to marriage ensures that the decision to disinherit is deliberate and considered. Such a rule may also encourage people to think about the implications of their new legal status and to make the necessary changes to their wills. The increasing frequency of divorce and second marriages makes application of a rule of automatic revocation both appropriate and necessary.107

107 In 1990 a well-known South African cricket and rugby player died in a car accident shortly after his marriage. His will, executed before marriage, named his parents as his heirs. To claim from the estate his widow had to rely on the Maintenance of the Surviving Spouses Act 27 of 1990. The claim was settled out of court.

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9 Fideicommissary Substitutions: Scots Law in Historical and Comparative Perspective George L Gretton A. B. C. D. E. F.

INTRODUCTION SUBSTITUTION FIDEICOMMISSUM FIDEICOMMISSARY SUBSTITUTION FIDEICOMMISSUM AND TRUST SUBSTITUTIO FIDEICOMMISSARIA WITH POWER OF ALIENATION G. THE ENTAIL H. RECEPTION I. THE TAILZIE J. THE NON-STATUTORY INTER VIVOS TAILZIE K. THE TESTAMENTARY FIDEICOMMISSARY SUBSTITUTION L. THE MYSTERY: RECEPTION OR NOT? M. FIDEICOMMISSUM MULTIPLEX N. REFORM O. SCOTS AND SOUTH AFRICAN LAW: SOME COMPARISONS P. CONCLUSIONS A. INTRODUCTION

Fideicommissary substitution lies at the boundary between succession law and property law. It belongs to a European tradition that is both common and fragmented. Comparative study has been slight.1 Indeed, even within national systems much of the history is obscure. The present essay looks at Scots law from a comparative and historical standpoint. The starting point itself is problematic. Does this institution even exist in Scotland? Open the books, and search the cases: you will find virtually no 1 An important exception is F Cuena Boy, El Fideicomiso de Residuo en el Derecho Romano y en la Tradición Romanística hasta los Códigos Civiles (2004), a work that is both historical and comparative. It does not, however, mention the mixed legal systems.

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discussion of this institution.2 Ask a Scots lawyer and he will not know even what you are talking about. So the answer to the question seems to be no. If that is right, Scotland differs from many other countries. Fideicommissary substitution survives, albeit sometimes in only a very limited form, in such countries as Germany (Vorerbschaft and Nacherbschaft),3 Spain (sustitución fideicomisaria),4 Italy (sostituzione fedecommissaria),5 Austria (fideikommissarische Substitution)6 and the Netherlands.7 France had it until the Revolution, when it was supposedly abolished.8 But in fact a weak form of it survives there, for the provisions abolishing it were narrowly construed by the case law. As for the mixed systems, Louisiana in its 1808 Code adopted the French prohibition, and has retained it.9 Quebec took over the pre-revolutionary French law, which was that substitution was permitted but limited in the number of generations.10 It survives in the Philippines.11 Sri Lanka received it in its Roman-Dutch form, and retained it until 1972.12 In South Africa it survives.13 Does Scots law have this institution? In Scotland we know curiously little about our own law. Even our surface maps are inadequate. As for geological maps, maps which show bedrock, we are even more deficient. We know too little of what is beneath our feet. But Scots law must wait until some introductory material has been sketched. 2 It is occasionally mentioned. Discussion is almost non-existent. T B Smith discusses it briefly as a possible source of the tailzie and of the trust (A Short Commentary on the Law of Scotland (1962) 552-555) but does not see it embodied in the Scottish institution of testamentary substitution. At 430 he discusses testamentary substitution without reference to fideicommissary substitution. R Burgess, Perpetuities in Scots Law (Stair Society vol 31, 1979) mentions the theory of a link, but dismisses it. 3 BGB §§ 2100 ff. 4 Código civil arts 781 ff. 5 Article 899 of the 1865 civil code abolished the institution but it was re-introduced, in a very limited form, by the 1942 code: Codice civile art 692. 6 ABGB §§ 608 ff. 7 But not as a separate institution: it is now regarded as a conditional legacy. See BW art 4:141. The change from the former code is substantial: see arts 1020 ff of the latter. 8 “Les substitutions sont prohibitées”: Code civil art 896, re-enacting legislation of 1792. For the pre-revolutionary French law, see R-J Pothier, Traité de Substitutions (1777). 9 The current codal prohibition is art 1520. See generally J H Tucker, “Substitutions, fideicommissa and trusts in Louisiana law: a semantical reappraisal” (1964) 24 La LR 439; R Scalise, “Prohibited substitutions” (2002) 48 Loyola Law Review 715. 10 This was codified in the first code (Civil Code of Lower Canada) in arts 925 ff. The current provisions are in the Quebec Civil Code arts 1218-1255. The length and detail of these provisions are striking. In the old code the term “fideicommissary substitutions” is used, while in the new code they are simply called “substitutions”. 11 Philippines Civil Code art 863. 12 When it was abolished by the Fideicommissa and Entail Act 1972. 13 See generally Corbett et al, Succession. For both South Africa and Sri Lanka see T Nadaraja, The Roman-Dutch Law of Fideicommissa as Applied in Ceylon and South Africa (1949).

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B. SUBSTITUTION One must distinguish two institutions of Roman law: substitutio and fideicommissum. First, substitution. There was more than one form of substitution, but the main one was substitutio vulgaris, vulgar substitution, also called direct substitution. This is where a testamentary provision was in favour of Y, whom failing Z, so that if Y died before the testator, Z would take. Y was the institute (institutus) and Z the substitute (substitutus). Since Y is instituted and Z is conditionally instituted, Z can be called the “conditional institute”, and in modern Scots law that is the term that is used, rather than “substitute”. Although “conditional institution” is a term that can be justified, why do we – unlike the South Africans – prefer it to “substitution”? The reason is simple: because we have chosen to use the word “substitution” to mean not direct substitution but rather fideicommissary substitution. (There: the cat’s out of the bag. Scotland does have fideicommissary substitution, but of an attenuated kind.) C. FIDEICOMMISSUM Fideicommissum began life in the older Roman law as a trust. The fideicommittens (X) gave property to the fiduciarius (Y) for the purpose of immediately handing it over to the fideicommissarius (Z). This original form was in the later Civilian tradition sometimes called the fideicommissum purum. The time when Y was to transfer or “restore”14 the property could be delayed, so that Y could, until that time, enjoy the property himself. Here the similarity to the trust is weaker, for in the trust the trustee, as such, cannot benefit. (But a trustee can also be a beneficiary, so that the gap in this respect between trust and fideicommissum is actually not so wide.) The date of transfer could be Y’s death, so that what was happening was very like usufruct, with Y corresponding to the usufructuary.15 Yet the institution was quite distinct from usufruct. In modern language, Y did not have a limited real right, as a usufructuary does, but full ownership. The contrast between this form of fideicommissum and usufruct emerges sharply in the fact that in fideicommissum, if Z died before Y, then Z’s successors took nothing. By contrast, if property is held by Y as usufructuary and by Z as owner, if Z dies before Y his right passes to his successors. 14 This is the standard term in English-language discussions of fideicommissary substitution. But apart from being an odd word in this context, it is not even the right word. The Latin is “restituere”. But “restore” comes not from “restituere” but from “restaurare”. 15 In Scots law a usufruct is called a liferent and the usufructuary the liferenter or liferentrix. The word suggests that a rent is involved, but that is not so.

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Since a fideicommissary obligation could be imposed not only on the fiduciary institute but also on the fideicommissary substitute, this form of fideicommissum could involve not just two persons, but many. It could be used to ensure that property would be handed down in a family. Each successive person would be a fideicommissarius in relation to the previous owner and a fiduciarius in relation to the future owner. Justinian legislated to limit these arrangements to four generations.16 D. FIDEICOMMISSARY SUBSTITUTION In the Roman sources themselves, the expression substitutio fideicommissaria is not used.17 Like much other terminology in the Civilian tradition, it is a later development. But eventually fideicommissum came to be conceived as a type of substitution, with the rights of the institute and the substitute being successive rather than alternative. In both sorts of substitution there was a replacement of one heir or legatee by another. E. FIDEICOMMISSUM AND TRUST The similarities with trust – more specifically with what is in England called a bare trust18 – are obvious: in effect X was a truster,19 Y a trustee and Z a beneficiary. It is not surprising that the great modern study of the subject, by David Johnston, calls fideicommissa “trusts”.20 In Louisiana the Civil Code’s 16 Novel 159. 17 Indeed, in Justinian’s Institutes, substitution is dealt with in titles 15 and 16 of book 2, but fideicommissum not until titles 23 and 24. 18 The term is also sometimes used in Scotland but not, I think, in South Africa. A bare trust is one in which there is a single beneficiary, who has an immediate right to a transfer of the trust assets, though for his own convenience he may leave the assets in the hands of the trustee. In South Africa the word “bare” is used to describe the ownership of a trustee, whether or not there is a “bare trust”. The term “bare ownership” is used in many countries, but not Scotland nor, I think, in South Africa, to describe ownership which is subject to usufruct: nuda proprietas, nudum dominium, nacktes Eigentum, nue propriété etc. 19 The Scottish term. In England and most of the anglophone world it is “settlor”. In South Africa the word is “founder”. 20 The Roman Law of Trusts (1988). A valuable study from a ius commune standpoint is B Beinart’s “Fideicommissum and modus” 1968 Acta Juridica 157. This contains a passage (at 175) on Scots law. As far as I am aware, Beinart – who had spent some time in Edinburgh at the invitation of T B Smith – is the only scholar to perceive that Scots law has testamentary fideicommissary substitution. He remarks that the Scots are wise not to use the term itself. This reflects his view that fideicommissary substitution should be deconstructed as a legacy subject to a modality. Since I draw attention to this passage, it is perhaps worth noting two inaccuracies. The statement that “destination-over” is the Scots term for fideicommissary substitution is not quite accurate, for the destination-over has two forms, and one of them, the conditional institution, has nothing to

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prohibition of “substitutions and fideicommissa” was always interpreted as a double prohibition of (a) fideicommissary substitutions and (b) trusts.21 In several Civil Law countries that have adopted the trust, it has been conceptualised as a form of fideicommissum.22 Indeed, fideicommissum seems to have been one of the roots of the Scottish trust.23 The same nearly happened in South Africa, where the question of whether trust and fideicommissum are to be identified with each other has proved a difficult one. Braun v Blann & Botha NNO finally answered it in the negative.24 Whilst that answer settles the matter for South African law, the similarities are undeniable. In Scotland Lord Stair on a number of occasions compared the trust with the fideicommissum,25 but whilst fideicommissum seems to be one of the roots of the Scottish law of trusts, trust has evolved as an autonomous institution.26 In all the mixed systems where fideicommissary substitution survived, the trust seems to have developed as an autonomous institution: that is true at any rate of the Philippines,27 Quebec28 and South Africa and also, until 1972, of Sri Lanka. It is worth observing that the functional effect of a fideicommissary substitution can be achieved within the beneficial interests of a trust. That is to say, a trust can be established and inside it a fideicommissary substitution can be created. Thus a truster could convey land to a trustee, to hold for Y, and on Y’s death to convey either (i) to Z, if alive, or (ii) if Z predeceases Y, to Y’s executor. In substance Y is the fiduciary institute and Z the fideicommissary substitute. This possibility is not surprising: one of the most remarkable features of the trust is its ability to mimic other institutions.

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do with fideicommissary substitution. The other is that T B Smith’s Short Commentary (1962) is confused with his earlier The United Kingdom: the Development of its Laws and Constitutions: Scotland (1955). See art 1520. The reference to fideicommissa was deleted in 1962. Examples include Argentina, Ethiopia and Mexico. See generally M Lupoi (ed), Trust Laws of the World (1996). G Gretton, “Trusts”, in Reid & Zimmermann, History vol 1, 480. 1984 (2) SA 850 (A). For discussion see E Cameron, M J de Waal, E Kahn, P Solomon and B Wunsh, Honoré’s South African Law of Trusts, 5th edn (2002) 54 ff. See e.g. Stair 4.6.2 and 4.45.21. And see Craig, Jus Feudale 2.5.9, where he discusses arrangements which he calls fideicommissa but which might equally be regarded as trusts. In his 1934 translation, J A Clyde uses the term “trust”. Fideicommissary substitution is in art 863: the trust provisions of the code are at arts 1440 ff. Fideicommissary substitution is in arts 1218-1255: the trust provisions of the code are at arts 1260-1298.

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F. SUBSTITUTIO FIDEICOMMISSARIA WITH POWER OF ALIENATION In fideicommissary substitution there were two obligations on the instituted owner: to preserve and to transfer. The obligation to preserve was a prohibition against alienation, an obligation de non alienando. But the fideicommittens could modify it, or indeed waive it wholly. In particular, he could permit the fiduciary to sell. This might work in two ways. In the first place there could be a requirement that the proceeds of sale had to be reinvested subject to the same rights, so that the fideicommissary estate was like a trust estate, a potentially revolving fund. Real subrogation operated, as it does in a trust.29 In the second place, the fiduciary could be given power to sell without real subrogation. In that case the substitution’s effect was limited to what was left when the time came for transfer, normally the time of the testator’s death. This modified form of fideicommissary substitution has had several names, all I think post-Justinianic. One is fideicommissary substitution residui, which is the term favoured in South Africa. Another is fideicommissary substitution de residuo, which is the form favoured in the Francophone world. Another is fideicommissary substitution eius quod superest which has a multitude of variants such as de eo quod superit, eius quod superfuturum erit and quod superfuerit. 30 This form of substitution survives in a number of modern legal systems, including German law31 and French law. As French jurists say, in such cases there is une obligation de transmettre mais non de conserver. Actually the French classify this not as a fideicommissary substitution with power of alienation, but as something other than a fideicommissary substitution. But this is merely a linguistic manoeuvre. Article 896 of the code says that “les substitutions sont prohibées”. Anything which is held lawful must therefore be conceptualised as being something other than a “substitution”. So to give the statutory provision a reasonable interpretation in practice, the courts, and jurists, have come up with the terminological solution of saying that where there is no duty to conserve there is no “substitution”.32 One finds the same 29 This form of fideicommissary substitution may not have existed in Roman law itself. In German law power of sale with real subrogation applies to unregistered assets: see BGB §§ 2111-2115. 30 See generally A Murillo Villar, El Fideicomiso de Residuo en Derecho Romano (1989); F Cuena Boy, El Fideicomiso de Residuo en el Derecho Romano y en la Tradición Romanística hasta los Códigos Civiles (2004). The former proposes (in ch III) a distinction in pre-Justinianic law between eo quod superit and si quid superit. 31 BGB § 2137. 32 For an English-language account of the French law see M Planiol, Treatise on the Civil Law (1959, being the Louisiana State Law Institute’s translation of Planiol’s Traité de droit civil) vol 3, part 2, paras 3265 ff.

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substantive law, and the same linguistic manoeuvre, in Louisiana.33 South Africa has something that seems to be a combination of both forms – of both a substitution with a duty to conserve and a residuary substitution.34 I find this puzzling. The very word “residui” indicates that the substitute is to receive merely what remains, and that seems inconsistent with a duty to conserve through real subrogation. Novel 108 provided that where there is residuary substitution, the institute – the fiduciary – must leave at least a quarter for the substitute. Novel 108 remains in force in South Africa. As I understand it, it is applied as a default rule only: in other words, the fideicommittens is free to allow the fideicommissary heir to alienate more than three quarters. I think that the jurisdictions of Southern Africa are the only ones in the world where Novel 108 remains in force either directly or as modified by later legislation. G. THE ENTAIL Legal institutions sometimes have definite boundaries but sometimes do not. Even if they have them, those boundaries may change over time. Like drops of oil on water, they may split or they may merge with other drops. Over time the very question of continuity of identity may be problematic. How much change can a legal institution undergo and still be deemed the “same” institution? During the Reception, institutions of customary law were sometimes replaced by Roman institutions, and sometimes they were not so much replaced as reformed. For example in Scotland one sees some pre-Reception land rights being changed so completely that at the end of the process they look – indeed are – almost completely Roman. Servitudes are an example. Sometimes the metamorphism – to revert to the geological metaphor – was less complete, as with liferent (usufruct). Of course, some of these pre-Reception institutions themselves may have had Roman roots. In pre-Reception Scotland one sees something like fideicommissary substitution in the form of “tailzies”, and one can see much the same thing elsewhere in Europe. The institution had different names, but the commonest was majoratus. It applied only to land and it was in principle perpetual. In most countries only noble families could use it, and in most countries it required the permission of the monarch. It was created not mortis causa but inter vivos. Its origin is generally considered to be non-Roman, though 33 See the references above and also D H Owen, “Baten v Taylor: survivorship clauses survive in the civil law” (1980/81) 41 La LR 262 at 270. I am indebted to Professor R R M Paisley for this reference. 34 Corbett et al, Succession 333; Voet 36.1.64.

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it underwent some Romanising influence, and in German-speaking Europe assumed a Roman name: Familienfideikommiss.35 But much about the history of this institution remains obscure, not only in Scotland but elsewhere.36 H. RECEPTION At the Reception, fideicommissary substitution was received in much of Europe. While the position is obscure, it seems that in some countries the old majoratus, or entail, was absorbed into the Roman institution – my impression is that this is what happened in France37 – while in others the two institutions remained separate, though there was in most countries at least some element of Romanisation of the entail.38 But in German-speaking Europe one sees the two institutions living separate lives.39 The same is partially true of Scotland. I. THE TAILZIE In his late seventeenth-century work, Treatise of Tailies, Sir George Mackenzie of Rosehaugh writes: 40 Our tailies are the same rights that substitutions were, or fidei commissa in the civil law, or feuda gentilitia in the feudal law, and therefore topics from those may be urged in debate concerning tailies with us; but I believe, with Craig, that our tailies proceed immediately from the English entails. 35 “Das Familienfideikommiss wurzelt trotz seines lateinischen Namens im deutschen Recht“: M Wolff and L Raiser, Sachenrecht, 10th edn (1957) 379. German jurists often use “German” in the sense of “non-Roman” and I think that that is how we should read this remark. The majoratus entail was far from being specially German. 36 “Die Entstehungs- und Verbreitungsgeschichte des Fideikommiss bedarf noch der Aufklärung”: H Coing, Europäisches Privatrecht 1500-1800 vol 1 (1985) 385. J A C Thomas, “Perpetuities and fideicommissary substitutions” (1958) 5 Revue internationale des droits de l’antiquité 571 has a comparison with English law. As this chapter went to press, I became aware of B Bayer, Sukzession und Freiheit: Historische Voraussetzungen der rechtstheoretischen und rechtsphilosophischen Auseinandersetzungen um das Institut der Familienfideikommisse im 18. und 19. Jahrhundert (1999). Unfortunately I have not had the opportunity to consult it. 37 For instance in at least some parts of Europe, notably France, one sees legislation broadly based on Novel 159 – which is about fideicommissary substitution – being applied to the entail/majoratus. In France this was done by ordinances of 1560 and 1566. Perhaps – I have not researched the point – Novel 159 had already been received. 38 Cf M Rheinstein, “Some fundamental differences in real property ideas of the ‘civil law’ and the common law systems” 1936 University of Chicago Law Review 624. 39 For instance, H Coing in his Europäisches Privatrecht (n 36) vol 1 treats Familienfideikommiss (majoratus/entail) and Universalfideikommiss (fideicommissary substitition) as wholly separate institutions. 40 The works of that eminent and learned lawyer, Sir George Mackenzie of Rosehaugh advocate to King Charles II and King James VII, with many learned treatises of his, never before printed (1716) 484.

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This is surely right: the tailzie was a pre-Reception institution, no doubt taken from the Anglo-Norman law.41 The very name suggests a descent from “entail”.42 But after the Reception it began to be reshaped by the fideicommissum. Animals have two parents, never more or less, but legal institutions can have one or two or more, and the number can change: thus the tailzie began with one parent, the Anglo-Norman entail, but later had two. The tailzie was created inter vivos. As far as land is concerned it could not be created mortis causa, for a simple reason: there was no power to test on heritage.43 Whether it was at that period ever attempted for corporeal or incorporeal moveables, I do not know.44 It could be either limited in time (to X and then to Y) or unlimited (to X and his heirs male). Could it be broken by the current owner? The answer is uncertain, and perhaps even lawyers of the time were unsure. There are three sixteenthcentury cases dealing with this question, preserved in the pages of Balfour’s Practicks, a work completed in about 1579:45 The King v Lindsay,46 Campbell v Levingstoun,47 and The Queen v Ayson.48 These held that the current owner could indeed break a tailzie by inter vivos transfer to another person, and even by a transfer to himself, with the new title omitting any reference to the tailzie. This clutch of cases suggests that the point had been regarded as uncertain. But of course the fact that it was regarded as uncertain then does not imply that it had always been so regarded. Perhaps a lawyer of the middle of the fifteenth century would have regarded it as obvious that a tailzie could 41 Though Stair 3.4.33 thought that tailzies came to Scotland direct from France, while Bankton (Inst 2.3.135) wrote that “there is no doubt but our tailies … are founded in the civil law”. A number of writers saw at least an analogy between tailzies and fideicommissary substitution: see e.g. Lord Kames, Principles of Equity, 3rd edn (1778) vol 2, 73 (book 1, part 2). 42 In “tailzie” the z is silent, which explains such spellings as “tailie”. In the eighteenth century the English word “entail” began to be used, and quickly became the principal form, without, however, ever wholly replacing “tailzie”. I prefer “tailzie” since it marks the distinction from the English institution. 43 Lawyers developed ways of circumventing this rule, and by about 1750 it was a dead letter. Thus in 1757 J Dalrymple was able to write that “we are approaching so fast to the practice of devising lands, that at present a bare disposition with a clause dispensing with non-delivery, found lying at a man’s death … would bind his heir”: Essay towards a General History of Feudal Property in Great Britain (1757) 151. (By “dispensing with non-delivery” is meant, in modern language, “dispensing with delivery”.) The common law rule was formally abolished by s 20 of the Titles to Land Consolidation (Scotland) Act 1868. 44 For the 19th-century views of the question, see Kinnear v Kinnear (1877) 4 R 705 and Adam’s Trs v Wilson (1899) 1 F 1042. 45 P G B McNeill (ed), The Practicks of Sir James Balfour of Pittendreich, 2 vols (Stair Society vols 21 and 22, 1962-3). Balfour’s material on tailzies is at 173-175 of vol 1. 46 18 January 1564. 47 The date is not stated. 48 28 February 1563.

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not be broken. As for whether tailzied land was attachable by creditors, I have not found any direct evidence, but it seems that by the end of the sixteenth century, if not before, lawyers were taking for granted that such land was attachable. One issue that the cases cited by Balfour do not touch upon49 is the role of the feudal superior. At that time any transfer of land needed, in principle, the superior’s consent,50 so that while it may – according to the sixteenth-century cases – have been lawful for the current owner to break the tailzie, he needed the co-operation of the superior to do so. The rather odd conclusion emerges that, at least at this period, the person who could enforce the tailzie was not the next heir, who had an interest, but the superior, who did not. And indeed both Craig and Stair so say.51 One may, however, wonder whether they were right. The reason is that, as a result of an Act of 1469,52 conveyancers had developed methods of compelling the consent of unco-operative superiors. That development had already taken place by their time. We know that these methods were used in cases not involving tailzies, and it may be that they could be used also where there was a tailzie. These sixteenth-century cases did not change the fact that there were those who wished to be able to entail their land in an unbreakable fashion. It was possible to add a clause de non alienando in favour of the next heir, but there were problems about the enforceability of this, especially after a generation, and above all there was the problem of protecting the property against creditors. Writing in the 1630s, Thomas Hope, perhaps the most distinguished jurist of his day, had this to say: 53 There is a new form found out, which has these two branches, viz. either to make the party contracter of the debt to incur the loss and tinsel54 of his right, in favour of the next in tailzie, or to declare all deeds done in prejudice of the tailzie, by bond, contract, infeftment55 or comprising,56 to be null of the law.

According to tradition, this idea was that of Hope himself. In a case in 1677 it was said:57 49 Though further research might reveal more: it is possible that the original papers in these cases survive in the National Archives of Scotland. 50 Except for land within a burgh. 51 Craig, Jus Feudale 2.16.20; Stair 2.3.43. 52 Diligence Act 1469 c 12. 53 T Hope, Practical observations upon divers titles of the law of Scotland, commonly called Hope’s Minor Practicks (1734) 403 (xvi.11). 54 Tinsel = forfeiture. 55 Feudal investiture, i.e. the creation or transfer of a real right in the land. 56 Execution against land. 57 Earl of Rothes v Lord Melville (1677) BS 168 at 170.

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As to the originals of tailyies in Scotland, with clauses irritant in case of contracting debts, or not taking the name etc, they are very late; the first of them within these 60 or 70 years; what was first in Scotland was the Laird of Calderwood’s tailyie of his lands, advised by Sir Thomas Hope; then there was one Duncan’s; then there was Thomas Moodie’s, as to the lands of Sauchtonhall; then the Viscount of Stormont’s, as to the estate of Annandale; and many since, though the President in his System,58 has declared himself no friend to such clauses.

An early example of the new-style tailzie can be found in a statute of 1644, which gives statutory force to a tailzie recently granted to the Earl of Callendar.59 Tailzies of this sort were first tested in court in 1662 in Creditors of the Earl of Annandale v Viscount Stormont.60 The litigation was by the creditors seeking to enforce their rights as against the next heir. This supports the idea that at this time that was the most problematic aspect of the tailzie. The heir won. But most lawyers were unconvinced that the decision was right,61 and in 1685 the pro-tailzie lobby succeeded in getting Parliament to pass an Act making unbreakable tailzies lawful, provided that they adopted a certain form and were registered in a new register, the Register of Tailzies.62 Over the following three centuries, legislation increasingly enabled owners of tailzied land to alienate it, and after the Entails (Scotland) Act 1914 no new tailzies under the 1685 Act could be created. The 1685 Act was finally repealed by the Abolition of Feudal Tenure etc (Scotland) Act 2000, in force on 28 November 2004.63 But by that time tailzies had long since ceased to be of much significance. Such is the history of what might be called the Scottish Familienfidei58 That is to say, Stair in his Institutions. Stair was Lord President of the Court. His book was not published until four years later, but it had been completed in its first draft by the early 1660s, and manuscripts of it were in widespread use. 59 1644 c 280 (APS VI(i) 252). 60 (1662) Mor 13,994. For another example of a tailzie, prior to the 1685 Act, containing clauses de non alienando et non contrahendo debitum, see Kilburny v Heirs of Tailzie of Kilburny (1669) Mor 15,347. 61 For powerful criticism, albeit from the next century, see Lord Kames, Historical Law Tracts (1758) 133 ff. Kames argues that any forfeiture comes too late. J V Agnew, Some Important Questions in Scots Entail Law (1826) 11-12, observes that tailzies had a double aspect, namely the “resolutive” clause which took the property away from the contravening owner and the “irritant” clause which annulled the forbidden act itself, and he argues that Kames overlooked the latter. This is unconvincing. 62 Entail Act 1685 c 26. Sir George Mackenzie, who was the successful counsel in Creditors of the Earl of Annandale, is said to have been the draftsman of this Act: E D Sandford, A Treatise on the History and Law of Entails in Scotland (1822) 43. But given Mackenzie’s criticisms, in his Treatise of Tailies, of the way the Act was drafted, this seems doubtful. 63 Abolition of Feudal Tenure etc (Scotland) Act 2000 ss 50-52, Sch 3 part 1. For accounts of the law of tailzies, see e.g. Sandford, History and Law of Entails (n 62), a second edition of which appeared in 1842, and W M Gordon, Scottish Land Law, 2nd edn (1999) ch 18.

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kommiss. It was the creation of pre-Reception customary law. When it was put on a statutory foundation in 1685 no attempt was made to Romanise it. J. THE NON-STATUTORY INTER VIVOS TAILZIE The 1685 Act was optional: it remained, and remains, competent to set up tailzies in the old way. But given that Creditors of the Earl of Annandale v Viscount Stormont64 came to be accepted as having been wrongly decided, even if it was never formally overruled, the common law method was abandoned, except for one-generation tailzies – in the language of the Roman-Dutch law a fideicommissum simplex, or unicum, rather than a fideicommissum multiplex. Thus property might be conveyed to X and thereafter to Y, or to X and Y and the survivor of them, without any attempt to control what would happen to the property thereafter. Such arrangements, which remain in use today, were not done under the 1685 Act. The term “tailzied destination” was used both for the statutory tailzie and for the common law one, but as time went on the two institutions drifted further apart, and increasingly the word “tailzie” came to be used for tailzied destinations created under the 1685 Act and “destination” or “special destination” for tailzied destinations created under the common law. Quickly the separation between the statutory tailzie and the common law tailzie became complete: they came to be considered as separate institutions. Thus when s 50 of the Abolition of Feudal Tenure etc (Scotland) Act 2000 provided that “land which … is held under an entail is disentailed” everyone accepted that only tailzies under the 1685 Act were affected, not common law ones. In the ongoing common law destination no attempt was made to protect it from creditors and usually there was no clause de non alienando either, so that the destination did not affect inter vivos transactions. If it was desired to have something stronger, the statutory tailzie was available.65 Common law tailzies – what are in modern practice called special destinations – remain in use.66 By far the commonest today is the reciprocal fideicommissary substitution, known in Scotland as the survivorship destination, as where Jack and Jill buy a house equally, with a destination to the survivor. This works as a conveyance of a half share to Jack, with a substitution to Jill, and a half share to Jill, with a substitution to Jack.67 Since it is only a residuary 64 65 66 67

(1662) Mor 13,994, discussed in the previous section. No new tailzies could, however, be created after the Entail (Scotland) Act 1914. For an account see G L Gretton and K G C Reid, Conveyancing, 3rd edn (2004) ch 23. Comparative work is needed in this area. In Scotland the only matrimonial regime is separation of property, so spouses are free to choose this survivorship system when buying a house, and

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substitution, either party can defeat the other’s spes successionis by an inter vivos transfer. In assessing the strength of a substitution, several possible challenges to it must be considered. There is the possibility of inter vivos alienation, which itself can be divided into gratuitous alienations and onerous alienations. There is the possibility of attachment by creditors. There is the possibility that the institute will seek to defeat the destination by testamentary provision. Assessed in those terms, the Scottish substitution is weak. It is ineffective against the institute’s creditors, who can defeat the rights of the fideicommissary substitute.68 It is ineffective against onerous alienation inter vivos. In most cases it is ineffective against gratuitous alienation inter vivos.69 Whether it prevails over a contrary legacy depends on the circumstances, and the law here is complex.70 Sometimes it does, and sometimes it does not. Thus in many cases a substitution takes effect only where the institute (a) still owns the thing at death and (b) is intestate. And of course the substitute must still be alive at that time, for, as in all legal systems, a substitution does not take effect unless the substitute survives the institute. It may help to set out in summary form the law on the extinction of special destinations. A special destination can be extinguished in five ways. In the first place, it is extinguished if the substitute dies before the institute. In the second place, it is extinguished if the institute dies testate, leaving a valid legacy of the property. This is, however, not usually competent.71 In the third place, a substitute can renounce the benefit of the destination. In the fourth place, an institute is free to alienate while he lives, and if he does so the destination is extinguished. In the fifth place, a destination between spouses (or civil partners) is extinguished by divorce.72 As the statutory tailzie and the common law destination drifted apart, the

68

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usually do so. See D Nichols, “Special destinations in Scotland” (1990) 35 JLSS 189. In many countries the applicable matrimonial property regime would apply automatically to any house that the spouses bought, so that an arrangement of the “survivorship” type would be unavailable to spouses, and available only to (e.g.) cohabitants: this would, I think, be true in France. In France, by the way, where this method is used it is not conceived of as a reciprocal substitution. Rather, the survivor is deemed to have been the sole owner from the very beginning. This way of thinking seems strange to Scottish eyes, and, I suspect, to South African and to German eyes too. Fleming’s Tr v Fleming 2000 SC 206. Contrast, for instance, South African law, under which the creditors can attach, but subject always to the fideicommissary’s rights: Corbett et al, Succession 322-323. As on so many other aspects of fideicommissary substitution, a full-scale comparative study of different systems would be desirable. See MacKay v Campbell (1835) 13 S 246; Robertson v Hay-Boyd 1928 SC (HL) 8. See M Morton, “Special destinations as testamentary instructions” 1984 SLT (News) 133. Even in the unusual cases where it is competent, it is effective only if the legacy contains a special verbal formula: see Succession (Scotland) Act 1964 s 30. This rule was introduced by s 19 of the Family Law (Scotland) Act 2006.

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latter began to be subject to Roman influence. The first grantee was sometimes called the “institute” and the substitute grantee the “substitute”. This begins in the second half of the seventeenth century, and it is now time to turn to the mortis causa substitution, which was also developing at that period. Many would regard testamentary substitution as the “real” substitution. K. THE TESTAMENTARY FIDEICOMMISSARY SUBSTITUTION In the second half of the seventeenth century, inter vivos fideicommissary substitution was being joined by mortis causa – testamentary – fideicommissary substitution. At first this applied only to moveables, because at that time only moveables could be bequeathed.73 The reception was only partial. It included the language of “substitution” but not that of “fideicommissary substitution”. Indeed, in the seventeenth century the word “fideicommis” was used, but it seems that it usually74 meant “legacy”.75 Perhaps the reason was French influence: in France, as in Scotland, “substitution” means fideicommissary substitution.76 In Scottish terminology, if there is a legacy by X to Y whom failing Z, there is said to be a “destination-over” to Z. There are two sorts of destination-over, namely (a) the conditional institution, which is substitutio vulgaris and (b) substitution, which is substitutio fideicommissaria. The process of partial reception of fideicommissary substitution in succession law was gradual, hesitant and, it seems, half-unconscious. The first case I would cite – but my researches have not been exhaustive – is the 1681 case of Christie v Christie.77 Here X bequeathed his whole moveable estate to Y whom failing to Z. X died, and then Y died, Z still being alive. “The Lords found, that the settlement imported a tailzied succession and proper substitution.”78 These two phrases seem to mean the same thing, and we see the court at one and the same admitting fideicommissary substitution and using, for its description, both Roman and medieval terminology. But the question of whether testamentary fideicommissary substitution was competent was still 73 See I. above. 74 But not always. Tantalisingly, Morison’s Dictionary of Decisions has a heading for “Fideicommis” but has just one case in it: Seton v Pidmedden (1717) Mor 4,425. 75 Stair regularly writes “legacy or fideicommis” in a way which suggests that for him they could be used as synonyms, though he also equates fideicommissum with trust: see above. As with so much in Stair, there is a need for more scholarly investigation. 76 I cannot go further than “perhaps” because there is a problem of timing. French influence on Scots law, once strong, began to ebb after the Scottish Reformation in 1560, being gradually replaced by Dutch influence. My impression is that the use of the word “substitution” in the French sense did not begin until the second half of the seventeenth century, by which time the high tide of French influence was long past. 77 (1681) Mor 8,197, 14,849. 78 The Court also held that pupillary substitution had not been received into Scots law.

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in dispute as late as 1740, when in a case of that year, Campbell v Campbell,79 the dissenting minority took the view that substitution could be competently created in “lands and bonds” but not in testaments. Testamentary fideicommissary substitution, like the inter vivos destination, did not in practice contain any clause de non alienando. From a conveyancing standpoint, a mortis causa fideicommissary substitution becomes indistinguishable from an inter vivos one. Thus, suppose that Alice leaves her house to Brendan whom failing to Charisse. Both Brendan and Charisse are alive at Alice’s death, and the destination is a fideicommissary substitution rather than a conditional institution – which, since the legacy is of immoveable property, is presumptively the case. Then Alice’s executor will convey “to Brendan whom failing to Charisse”, which is precisely what the deed would look like if Brendan had acquired the property inter vivos and the conveyance had contained (for whatever reason) a substitution to Charisse. Thus the destination-over in the testament has converted itself into a special destination in the title. L. THE MYSTERY: RECEPTION OR NOT? It was suggested in the previous paragraph that the reception was “half-unconscious”. And here we come to a mystery which is at the heart of this paper. By the end of the seventeenth century, Scots law had fideicommissary substitution, both inter vivos and mortis causa. Yet lawyers of that period, and of the eighteenth century, tended to write as if it were a purely Scottish institution. The developments in the tailzie during the seventeenth century happened as if no one in Scotland had even heard of Roman law. The same phenomenon can be found in the eighteenth century too. Consider the following remark of Erskine’s: “The Romans had the name of substitution without the thing.”80 That is to say, they had what they called substitutio, which is to say direct or vulgar substitution (in Scottish terminology conditional institution) but they did not have the Scottish substitution, i.e. fideicommissary substitution. It would be hard to think of a stranger remark. But it was not just the momentary aberration of a great jurist. Others said much the same. One finds it also in the cases.81 Or take a jurist rather earlier than Erskine, Lord Dirleton. In about 1680 he writes:82 79 (1740) Mor 14,855. 80 Erskine, Inst 3.8.44. 81 See in particular Campbell v Campbell (1740) Mor 14,855 and Brown v Coventry (1792) Mor 14,863. 82 J Nisbet (Lord Dirleton, 1609-1687), Some Doubts and Questions, in the Law; especially of Scotland (1698) 183. This passage is omitted from the 1715 and 1762 editions by J Steuart.

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Quaeritur, de substitutionibus in taliis nostris, istis verbis, viz, cum terrae disponuntur Titio et haeredibus suis de corpore suo prognatis, quibus deficientibus haeredibus masculis etc, utrum sunt pupillares an vulgares? Responsio: eas utramque substitutionem continere.83

In other words, when he seeks to measure up the tailzie against the yardstick of the Civil Law, it occurs to him only to consider vulgar substitution and pupillary substitution, ignoring fideicommissary substitution. Perhaps, then, he was unaware of that institution? But only two pages later he writes: A legacy being left to a person, and failzeing of him by decease to another, Quaeritur, what the import of that substitution is? Answered, it is thought, that it is substitutio vulgaris, and that the effect of it is, that if the legatar die before the testator, so that the right do not take effect in his person, it should belong to the substitute: but that it is not fideicommissaria, so that the legatar dieing after the testator, it would belong to his executors, and not to the substitute.

So fideicommissary substitution was something with which he was familiar. Here is the mystery: Scots law had an institution, tailzie, that was similar to fideicommissary substitution, and which was eventually influenced by it. And Scots law had, before the end of the seventeenth century, testamentary fideicommissary substitution. Scots lawyers were familiar with their own law and with Roman law. And yet they persisted in saying that fideicommissary substitution was a Scottish invention which had never occurred to the Romans. One may speculate that this strange view of matters perhaps had its origins in something said by Craig at the beginning of the seventeenth century.84 There are two possible solutions to the mystery, neither of them easy to swallow. The first solution would be that the Civilian institution did not influence Scots law, so that one is contemplating an example of parallel evolution, coupled with strange ignorance among well-educated Scots lawyers. The second solution is that the Civilian institution was indeed received, though not completely, and that it was being imported by lawyers who did not write about it, or whose writings have not come down to us, while those who have left evidence behind them were those who were uninformed. As has been said, neither solution seems to have much merit yet one must be true. Whichever solution is adopted, one cannot escape the conclusion that some learned Scottish lawyers such as Erskine were remarkably ignorant of this area of Roman law.85 This point needs to be stressed, for it is tempting to argue that 83 [When lands are disponed to Titius and the heirs of his body, whom failing to his heirs-male, do these words operate as pupillary or as vulgar substitutions? The answer is: both.] 84 See Craig’s remarks in Jus Feudale 2.6.1. 85 As for Dirleton, one may note that his book is made up of separate small titles probably composed over many years. The first passage may have been written long before the second. But in fact

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if jurists such as Erskine did not see Scots law as having fideicommissary substitution, then the overwhelming probability is that Scots law did not have it. The ignorance of the jurists about fideicommissary substitution simply means that no inferences can be made from what they wrote or did not write. And one must recall that until about the middle of the eighteenth century, ambitious Scottish law students would often study on the Continent, and, whether they did so or not, would use ius commune textbooks. The Scottish texts were not the only sources. Either solution is problematic, but the second – that there was a partial reception of the institution – must be right. The very terminology gives the game away: institutes and substitutes. A reception took place. It took place by night rather than by day, so that the camera of historiography cannot capture it. But the footprints are there. M. FIDEICOMMISSUM MULTIPLEX The fideicommissum multiplex is a fideicommissary substitution that operates successively. Thus Alice is fiduciary and Boris is fideicommissary, but when Boris takes there will be a further substitution in favour of Carla. Justinianic legislation – Novel 159 – limited such substitutions to four generations, and comparable provisions can be found in many civil codes. South African law seems not to have received Novel 159: at common law there is thus no limit, and common law still applies to moveables, though for moveables a limit of two successions now applies.86 To what extent such multiple substitutions have been used in Scotland since the seventeenth century, apart from the this explanation does not suffice. The first passage is a response to “Perez Institut lib II tit 15”, i.e. to the Institutiones Imperiales of Antonius Perezius (Antonio Perez). In the very title cited, Perezius writes: “Quotuplex est substitutio? Alia est directa, quae fit verbis directis and civilibus, directe et immediate ipsum substitutum respicientibus; ejusmodo sunt verba, do, lego, haeres esto, &c. Alia fideicommissaria, quae verbis sit precariis et obliquis, non immediate ad substitutum directis, set mediante alia persona, cujus ministerio restituatur haereditas; cujusmodi sunt verba, rogo, mando, volo, fidei tuae committo.” [How many types of substitution are there? In the first place there is the direct substitution. This is effected by direct legal language, having reference immediately to the person substituted. Examples are “I give”, “I bequeath”, “I appoint as my heir” etc. Another type of substitution is the fideicommissary substitution. Here the language used is precarious and oblique, not direct and immediate, in favour of the substituted person, but mediately through another person, through whom the estate is to be handed over to the substitute. Examples are such terms as “I ask”, “I direct”, “I wish”, “I commit to your trust”.] Yet even with this before his eyes, Dirleton does not see. 86 Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965. It is unclear to what extent Novel 159 was received across Europe. For some discussion see the commentary on Novel 159 in Simon à Groenewegen van der Made, Tractatus de legibus abrogatis et inusitatis in Hollandia vicinisque regionibus (1649), transl by B Beinart and M L Hewett as A treatise on the laws abrogated and no longer in use in Holland and neighbouring regions, vol 4 (1987) 270-272.

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now-abolished statutory tailzie, is unclear to me. There is no need to have any legislative limit to them, partly because they are not used in practice and partly because fideicommissary substitutions are so weak in Scots law.87 N. REFORM In 1966 the Halliday Report88 recommended certain changes in the law. There is little explanation of the Committee’s thinking. At paragraph 144 the recommendation is: Without prejudice to the effectiveness of destinations to any person under a will or trust deed, it should be competent to insert in a conveyance of heritable property a destination in favour only of (a) two or more named persons and the survivor or survivors of them or (b) a person or persons named in liferent and a person or persons named in fee.

This is a muddle, and illustrates how the subject had sunk. The recommendation that the change was not to affect what testators could do was inconsistent with the recommendation that the only kind of destination that could be inserted in a conveyance would be a survivorship destination. The reason: if a testator, X, wished to leave property to Y whom failing – by way of (fideicommissary) substitution – to Z, then he would be allowed to do so, but there would be no way of giving effect to that wish, because X’s executor could not convey the property in those terms.89 This recommendation was not implemented. But it was revived in 1990, when the Scottish Law Commission published its Report on Succession.90 This time the muddle identified above was avoided by adopting a stricter approach. Testators would not be permitted to create substitutions, except by way of survivorship:91 Where in a will, or in a trust taking effect during the lifetime of the truster, there is a destination (however expressed) of property, whether heritable or moveable, in favour of one person, whom failing another person, then, if and as soon as the property vests in the first person mentioned above, the other person shall lose all right to that property.

87 But Scots law does have legislation to prevent excessively long-term control of property. Unlike South Africa, Scotland has adopted, in modified form, much of the English “rules against perpetuities”. These rules apply to trusts. See generally Burgess, Perpetuities in Scots Law (n 2). 88 Conveyancing Legislation and Practice, Cmnd 3118, paras 140-146. 89 There is also another muddle in the passage quoted: a conveyance to one person in liferent and another in fee is not, stricto sensu, a destination. 90 Scot Law Com No 124 (1990). 91 Clause 29(5) of the draft bill in the Report.

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But the Report arguably made another mistake. A survivorship destination is itself an example of a “destination ... in favour of one person, whom failing another person”. This is because it is a conveyance of half to Y whom failing Z and the other half to Z whom failing Y. Yet the intention was to preserve survivorship destinations.92 The Report was not implemented. But the Scottish Law Commission has recently begun work again on succession and the recommendation may be revived. O. SCOTS AND SOUTH AFRICAN LAW: SOME COMPARISONS (a) In Scotland fideicommissary substitution is in practice more of an inter vivos institution than a mortis causa one. In South Africa the opposite is true. (b) In Scotland there (probably) is only the fideicommissary substitution residui. In Scotland Novel 108 has not been received. (c) So weak is it in Scots law that it can often (but not always) be defeated by a contrary testamentary provision by the institute. (d) In Scots law the institute’s creditors can so attach the property as to defeat the rights of the substitute, whereas in South Africa they can indeed attach the property, but subject to the substitute’s rights. (e) If it is uncertain whether the testator intended (i) a fideicommissary substitution or (ii) a conditional institution (direct substitution), in South Africa the presumption is for the latter. In Scotland the presumptions are: (a) if the legacy is of land, fideicommissary substitution is presumed; (b) if the legacy is of moveables, or a mixture of land and moveables (such as a house together with its contents), then conditional institution is presumed. That, at least, is the official doctrine. But in practice, because testamentary fideicommissary substitution has become such a marginal institution, conditional institution tends to be presumed in every case. (f) If it is uncertain whether a testator intended a fideicommissary substitution or a usufruct (a liferent), in South African law the presumption is for the former. In Scotland there is no settled presumption, but because testamentary fideicommissary substitution has become such a neglected subject, in practice the presumption is in favour of liferent.93 (g) In Scotland “substitution includes conditional institution” is a fixed rule. By contrast in South Africa either can exist without the other. If they 92 The same problem can be found at cl 29(5) of the draft bill. 93 For an interesting case see Cochrane’s Exr v Cochrane 1947 SC 134.

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are combined, that is what is called in South Africa a “compendious” substitution. In other words, in Scots law every substitution is compendious. Although Scots law has testamentary substitution, it is marginal. It is a forgotten institution of the law. One suspects that few legal practitioners know that there is such a thing as substitution. One suspects that in practice substitutions are usually treated as conditional institutions. P. CONCLUSIONS Scotland had a pre-Reformation inter vivos institution, the tailzied destination. About the beginning of the seventeenth century this began to split into two: the tailzie, containing clauses de non alienando et non contrahendo debitum, and the substitution without such clauses. The split became complete when the former was put on a statutory footing in 1685. Roman ideas seem to have had not much influence on the former but they did on the latter, which thus underwent a metamorphism, developing into a form of fideicommissary substitution. Within the law of succession fideicommissary substitution was received in the second half of the seventeenth century, but hesitantly and uncertainly. Neither the inter vivos destination nor the testamentary substitution was in practice accompanied by clauses de non alienando et non contrahendo debitum. If such clauses are considered as being of the essence of fideicommissary substitution, then Scots law does not have that institution. But one can hardly say that they are of the essence, given the possibility of fideicommissum de residuo. The current position is that in the law of succession fideicommissary substitution de residuo still exists, but more in theory than in practice, while in inter vivos transfers of land it is common in the form of the survivorship destination but otherwise rare. As for the statutory tailzie, it ceased to exist on 28 November 2004. We thus seem to have two sources leading to three institutions:

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È

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Statutory tailzie

Civilian fideicommissary substitution

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Older common law tailzie

Special destination

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Testamentary substitution

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The distinction in the diagram between the special destination and the testamentary substitution is strictly speaking unsound, for they are really the same, the only difference being that one is created inter vivos and the other mortis causa. But their historical development is not the same. Of the three institutions on the diagram’s lower level, the middle one thrives, but only in the form of the reciprocal special destination (the survivorship destination). The third leads an anaemic existence, while the first – long marginal – was abolished in 2004 by the Abolition of Feudal Tenure etc (Scotland) Act 2000.

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10 The conditio si institutus sine liberis decesserit in Scots and South African law Alan R Barr A. WHAT DOES IT MEAN? B. WHERE DID IT COME FROM? (1) Scotland (2) South Africa (3) Some conclusions C. WHERE IS IT NOW? (1) South Africa (a) Fideicommissary substitution (b) Direct substitution (c) Comparison with Scots law (d) A third version (2) Scotland D. WHERE IS IT GOING? A. WHAT DOES IT MEAN? When George Bernard Shaw described England and America as two countries separated by a common language,1 at least that common language was the principal tongue of the countries in question. One trouble with the conditio si institutus sine liberis decesserit is that it has retained its Latin title. This has perhaps led to a certain fuzziness about the meaning of the rule embodied in the phrase. “Sine liberis” means “without children” – and yet the whole point of the rule is that it directs what is to happen where the institute dies with children. The circumstances in which the rule may come into effect derive from extremely basic and common parts of will drafting. Take the following 1 Although the aphorism is usually attributed without debate to Shaw, it is difficult to source his original use of the comment – see “Inside the American language”, in An American Encyclopaedia (http://www.miketodd.net/encyc/lingo.htm).

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example: “I direct my executors to make over to A, whom failing to B, the residue of my estate”. A is the institute and B is the conditional institute or the substitute.2 If B is a conditional institute, once the bequest has vested in A, B can no longer inherit. If B is a substitute, B can inherit on the institute’s death, unless A has disposed of the bequest in lifetime or on death. But in the case of corporeal moveables, mere possession by the institute will suffice to defeat a substitution.3 The rebuttable presumptions which operate in this field in Scots law are that conditional institution is intended where moveable property is involved4 and substitution where the subjects of bequest are entirely heritable.5 Nonetheless substitutions are rare in Scotland. One suspects that in many cases the estate of the institute is wound up without any thought of whether a substitution should have been effective to carry part of “his” estate otherwise than to his own heirs. Under the rule the condition attaches to the position of B: B will inherit on condition that A will have died (decesserit, the future perfect tense) without leaving children (or, probably, other issue). But if A dies and leaves issue, the application of the rule means that B is excluded and the subject of the bequest passes to those issue. The possibility is that one or more children will intervene to deprive B of the bequest. On the face of it, this looks to be a tolerably simple rule. Although it may have a common Roman origin, it takes somewhat different forms in Scotland and in South Africa.6 Analogous rules can be found in numerous other systems.7 Despite the ubiquity of forms of the rule, it should perhaps be considered as a rather strange intervention by the operation of law into the apparent intentions of a testator. It seems as if the law feels the need to make up for what might – but might not – be a lapse of the testator’s memory. In most other cases, the law takes the strict view that the testator’s intentions are 2 Or, as George Gretton has described it, “A is the institute and B is the problem”. Only the term “substitute” appears to be current South African usage, although as will be seen there are different types of substitute in that system. A conditional institute is referred to in South Africa as a direct substitute. 3 Robertson v Hay-Boyd 1928 SC (HL) 8 at 13 per Viscount Dunedin. 4 Crampton’s JF v Barnardo’s Homes 1917 SC 713. 5 I.e. immoveable. See Watson v Giffen (1884) 11 R 644. 6 For an important exploration of the origin and development of the Scottish position, with some reference to the situation in South Africa, see D R Macdonald, “Lapse of legacies in Scots law”, in E Cooke (ed), Modern Studies in Property Law vol 1 (2001) 275, from which I derived much assistance and insight in the preparation of this chapter. In passing, Macdonald asserts (at 276) that the conditio does not apply in Scotland in cases of substitution so-called, but this may not be the case. 7 E.g. England and Wales: see J G Ross Martyn, S Bridge and M Oldham, Theobald on Wills, 16th edn (2001) paras 57.14-57.15; Germany: see BGB §§ 2068-2069; USA: see Uniform Probate Code s 2-603; Ontario: see Succession Law Reform Act 1990 s 31.

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to be ascertained from the actual words used in a will, no more and no less: extrinsic evidence is rarely permitted as to what the testator really meant.8 The rule may be an example of the law according importance to the notion of succession as a form of enforced family provision. In this context the conditio si institutus could therefore be seen as a form of forced inheritance. Despite its ostensible simplicity, the development of the rule and its exact scope in both Scotland and South Africa has been far from straightforward. There have been numerous court decisions over many years, together with significant amounts of commentary. This is particularly noteworthy in Scotland where, especially in the twentieth century, decisions on “pure” succession matters (as opposed to those involving trusts) have been comparatively rare. The terminology used to describe the rule differs as between Scotland and South Africa; and the current usage in Scotland also differs from some expressions of it from the past. This has perhaps compounded a problem peculiar to Scotland (and Scottish law students) by which the conditio si institutus sine liberis decesserit has frequently been confused with a rather different rule, the conditio si testator sine liberis decesserit. The latter deals with the position where a testator has made a will, but later has a child for whom no provision was made. Successful invocation of the conditio si testator leads to the revocation of the will. In a sense, therefore, the two rules have opposite effects. The conditio si institutus adds something to a will which the law presumes that the testator would have wanted; the conditio si testator reacts to the testator’s presumed omission by the nuclear solution of removing the will entirely, thus throwing all concerned into the vagaries of the law of intestacy. The confusion in Scotland can be illustrated by considering the treatment of the two conditiones in Trayner’s Latin Maxims.9 The index is particularly unhelpful, with the phrase “conditio si sine liberis decesserit” leading to the phrase “si sine liberis decesserit”. This is given the translation “if he shall have died without children” – but without clarification of who “he” might be. The entry for “si sine liberis decesserit” is in the following terms:10 This is an implied condition, borrowed form the civil law, which, in certain cases, our law holds as attached to mortis causa dispositions of moveable or heritable estate conveying such estate beyond the disponer’s own children … If at the time of executing the conveyance the granter shall have no children, but after his death a posthumous child should be born to him, the conveyance will be ineffectual to carry the succession past the child, in whose favour it is presumed a new conveyance would have been granted had its father survived … The same presumption 8 See, e.g., Blair v Blair (1849) 12D 97 at 107 per Lord Moncrieff. 9 4th edn (1894), reprinted 1993. The reprint does not include the index. 10 At 576.

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holds where a father conveys to his child, whom failing, to a stranger, if the child should die leaving lawful issue, for in that case the child’s issue would succeed to the exclusion of the stranger substitute.

This would not be of much help to the diligent seeker after meaning. It treats the two rules as if they were one, as well as expressing the conditio si testator in relation to the testator’s death rather than to the date of the will. While the two rules have apparently similar origins in Roman law,11 the similarity of terminology only disguises the differences between them. South Africa appears to have no equivalent to the conditio si testator,12 and it is not explored further in this chapter. If one relied on finding the word “conditio” in indices of South African works on succession, one might assume that there was no conditio si institutus in South African law either. However, the rule is undoubtedly there, and can be traced under headings such as “si sine liberis decesserit”. In the absence of a competing conditio si testator, there can be no doubt that it is the death of the institute with which the rule is concerned. In fact the rule appears to exist in more than one form, and, because of other factors in South African succession, it may have greater theoretical and practical importance than is the case in Scotland. Certain aspects of the rule have been resolved only in the relatively recent past, whereas the parameters of the Scottish rule appear to have been settled for some considerable time. B. WHERE DID IT COME FROM? (1) Scotland A Latin expression of a rule need not imply a Roman origin, but Roman law is a good place to start. In Scots law, that Roman starting point is emphasised by the fact that the Roman sources were explicitly referred to in one of the earliest reported cases on the rule, Magistrates of Montrose v Robertson, decided in 1738.13 In turn, that case is commonly cited as representing the origins of the rule in Scotland, thus demonstrating an apparently smooth transition from Rome to Reception to modern Scots law. The Roman sources are three in number and can scarcely be described as 11 This is explored, along with much else of value on these subjects, in W M Gordon, “Roman law and Scots law – the conditiones si sine liberis decesserit” (1969) 14 JR 108, reprinted in W M Gordon, Roman Law, Scots Law and Legal History: Selected Essays (Edinburgh Studies in Law vol 4, 2007) ch 8. 12 See De Waal & Schoeman-Malan, Succession 97 n 146. 13 (1738) Mor 6,398.

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“headline” material: a response by Papinian14 and two rescripts of Justinian.15 The first was expressed in the following terms:16 A grandfather who had instituted as his heirs his son and his grandson by his other son, requested the grandson, if he should die before reaching the age of thirty, to hand over his inheritance to his uncle. The grandson died, leaving children, before reaching the said age. Basing myself on what paternal duty would suggest, I replied that the condition on which the fideicommissum was given had failed, because of a finding that less had been written than had been said.

Codex 6.42.30 referred to this response and extended the rule to cases involving all degrees of descendant. Codex 6.25.7(6) extended it further, from lawful to natural descendants, again of whatever degree. It is worth quoting this rescript in full:17 However, whereas We have found that the great Papinian, in a case in which a father had made a substitution to his son, without adding anything about any children the son might have, laid down, in his supreme wisdom, that the substitution should not take effect, if the person subject to the substitution should become a father and accept the children into his family, holding that it was improbable that the father would have made such a substitution if he had thought of his grandchildren: moved by humanity We have thought that this should be both more broadly and more generously interpreted. 2. And if anyone has had natural children and has left part of his estate to them or made a gift to them within the limit which We have laid down, and has made a substitution to them, making no mention of their children, in this case also the substitution should be regarded as defeated by the birth of children. The supreme wisdom of the above decision stands in the way of those called under the substitution and does not permit them to take that part of the estate but allows its transmission to the sons or daughters, grandsons or granddaughters, great-grandsons or great-granddaughters of the person dying, the substitution failing to take effect unless the said children have died without lawful issue: so that what has been laid down for lawful children may be extended to natural children. 3. And We lay down that all this shall apply also to special legacies or fideicommissa.

As Macdonald has pointed out,18 Scots law was relatively quick to deny that the version of the rule in domestic law was wholly Roman in origin. What was adopted (or perhaps received) was the broad principle; and that principle was used as an analogy to develop what was already domestic law by the time of Magistrates of Montrose. The principle in question is perhaps no more than that the law should encourage parents to support their children (and, in 14 15 16 17 18

D 35.1.102. C 6.25.7(6); C 6.42.30. D 35.1.102, translated in Gordon (n 11) at 126. C 6.25.7(6), translated in Gordon (n 11) at 127. Macdonald (n 6) at 277-283, quoting in particular Dixon v Dixon (1836) 14 S 938 at 944 per Lord Glenlee, who drew attention to the Roman origins of the law of fideicommissa.

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Scotland, certain others), as opposed to making arrangements to take assets to a third party, whether outside the family entirely or from a more distant relationship than the direct parental line. The successful party in Magistrates of Montrose cited a passage from Stair’s Institutions:19 As to the benefit of heirs, they have right, not only to obligements conceived in favour of the defunct and his heirs, but though there be no mention of heirs, unless by the nature of the obligement, there be a specialty, appropriating the same to the person of the defunct only, as in commissions, trusts etc … And a substitution, mentioning only a person substituted without mention of heirs was found competent to that person’s heirs.

Three Scottish cases were cited by Stair for this proposition – Innes v Innes,20 Murray v Grant21 and Powrie v Dykes.22 As with Magistrates of Montrose itself, these cases barely dealt with actual wills or trusts but with bonds and other contractual debts, in which the original or assignee creditor had included directions as to what was to happen on repayment if he did not survive the period by which this was to occur. Nonetheless the documents seem sufficiently testamentary to found a rule which, in its later form, was virtually confined to wills and trusts.23 There is no citation of the conditio si institutus and its Roman basis in the reports of the arguments or judgments in these early cases. Murray and Powrie, which deal with whether heirs were to be included as implied beneficiaries of bonds when they were not mentioned directly, contain no mention of Roman law at all. It was held that heirs were to be included. Innes was a more complex case, but did actually involve legacies. A substitute legatee predeceased the testator. The institute had also predeceased. It was held that the children of the substitute could benefit. Roman law was mentioned, but only to the effect that its rules were different from the result reached in the present case, which was based on Scots law and practice. In many ways, Innes goes beyond what the conditio would itself allow. And of the cases before Magistrates of Montrose, it is the one which, along with the passage from Stair just quoted, most directly points to an independent domestic origin for the Scottish rule. It was in Magistrates of Montrose that the rule acquired its modern form;24 19 20 21 22 23 24

Stair 3.5.5. (1670) Mor 4,272. (1662) Mor 10,322. (1667) Mor 11,648. Spalding v Spalding’s Curator ad Litem 1963 SC 141. Magistrates of Montrose v Robertson (1738) Mor 6,398.

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and the use in that case of Roman authority gave the rule a degree of clarity that it had hitherto lacked. The Magistrates of Montrose had borrowed 2,000 merks from David Robertson, for which sum they granted a bond. This bond, no doubt at Robertson’s instigation, bound the Magistrates to repay the sum of money to him, and his wife for her liferent use, and to their children in fee. In case of the decease of any of the children, the sum was to be divided amongst those who survived. Robertson died and was predeceased by three children leaving one child surviving. That child successfully claimed the whole sum from the Magistrates in the first instance. The case as reported started as an action by one of the children of a predeceasing child, on whose behalf the Roman authorities were cited. They only appear in the arguments for the ultimately successful party. As is common with decisions from this era, the actual judgment as reported is extremely brief. There is certainly a sense that the Roman authorities were produced merely to buttress an argument that was already good in domestic law, based on something akin to natural justice and (if the term does not cause offence in Scots law) equity. In any event, Magistrates of Montrose was treated as authority in further cases on the application of the rule, steadily reinforcing its applicability in a widening range of situations.25 In Dixon v Dixon26 the Court of Session considerably extended the rule by applying it to a case in which there was no destination-over. The court may have been influenced by the fact that the institute predeceased the testator only by a day. Lord Medwyn commented:27 I agree with Lord Glenlee that this is not a case in which the conditio si sine liberis properly applies, and I also agree with the observation of the pursuers that it comes in, as in the Roman law, only in cases of substitution. But the principle of the pietas paterna is quite sufficient to carry us through here, and it does not require a substitution to give it effect. It would be difficult to figure this principle interfering in any other case than that of a settlement of provisions by a father on his children, and in the present case I think it should interfere to prevent the pursuers coming in for the residuary succession.

Dixon foreshadows further developments. It also neatly encapsulates the dual origins of the rule from both domestic and Roman sources. In the same case, Lord Glenlee rather talks down the Roman influence:28

25 See Cuthbertson v Thomson and Young (1781) Mor 4,279; Wallace v Wallace (1807) Mor App “Clause” No 6; Dixon v Dixon (1836) 14 S 938, (1841) 2 Rob 1. 26 (1836) 14S 938, (1841) 2 Rob 1. 27 (1836) 14 S 938 at 944. 28 (1836) 14 S 938 at 944.

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As to the doctrine of the conditio si sine liberis decesserit, we go upon its principle, but it is absurd to suppose that the rule itself could be adopted into our law, as it was expressly adapted to the Roman fideicommissa.

Thus a Roman rule was adopted, adapted and used to support a principle which Scots law may well have reached independently. (2) South Africa The division of views on the origins and application of the conditio si institutus in Scotland leads on neatly to the position in South Africa. The South African position is complicated by the separate tracks which have led to the modern law – there are now different rules in relation to direct substitutions (conditional institutions in Scots parlance) and fideicommissary substitutions. But it seems absolutely clear that the rule derived from the Roman sources quoted above. Unlike Scotland, South Africa allows the possibility of fideicommissary substitution. A South African fideicommissum29 is a legal institution in terms of which a person (the fideicommittens) transfers a benefit to a particular beneficiary (the fiduciary or fiduciarius) subject to a provision that, after a certain time has elapsed or a certain condition has been fulfilled, the benefit goes over to a further beneficiary (the fideicommissary or fideicommissarius).

This is akin to a substitution properly so-called in Scots law and is absolutely distinct in South African law from direct substitution. Naturally, fideicommissum provides a direct link to Roman law – in keeping with the views of some Scots judges on the fideicommissary origins of the Roman conditio si institutus. Thus there is a clear line of development from Roman origins, through Holland and into Roman-Dutch law. For example, the conditio si institutus is discussed by Voet in this context in some detail, dealing directly with the three Roman authorities quoted above.30 In South Africa it was eventually decided that the rule had no place other than in fideicommissary substitution. This was in the important but heavily criticised Privy Council case of Galliers v Rycroft31 in which the Supreme Court of Natal32 was reversed on the issue in question. The case concerned a classic and simple set of circumstances pointing to the potential applica29 De Waal & Schoeman-Malan, Succession 139. 30 Voet 36.1.17-24. See also the other Dutch commentators on the issue referred to in Galliers v Rycroft [1901] AC 130 at 135 per Sir Henry de Villiers, discussed below. 31 [1901] AC 130. 32 (1898) 19 Natal Law Rep 221.

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tion of the conditio si institutus. The testator executed a will in Natal which directed that, after his wife’s death, his estate “should be divided equally among my children or such as may then be alive”. The testator was survived by his wife, one son and three daughters. The son died before the expiry of the life interest in favour of the wife, leaving one son (i.e. the grandson of the testator). All three daughters survived the wife. A claim was made by the grandson to share in the distribution. The claim succeeded in the Natal Supreme Court but the Privy Council reversed that decision. In the Privy Council, Sir Henry de Villiers considered the Roman law, and had this to say about the response by Papinian:33 It is obvious that in this brief opinion, Papinian was not referring to the case of a direct or ordinary substitution – that is to say, the substitution of the son on failure of the grandson to take under the will, but to the case of a fideicommissary substitution – that is to say, the substitution of the son for the grandson, by virtue of a trust imposed on the latter to restore the inheritance on the happening of a certain event after he had entered on it. The term fideicommissum used by Papinian would not be applicable to a direct substitution nor would the grandson be requested to restore (restituere) an inheritance which he had never entered upon.

Sir Henry de Villiers made reference to numerous commentators. Apart from Voet, he mentions Peruzius, Wizzenbach, Strykius, Bruennemann and Bruge, and asserts that none of them had extended the conditio beyond fideicommissary substitutions. In his view such an extension would “presume an intention which the testator has not expressed” – and this was not permissible.34 However, it was recognised that there was nothing inherently objectionable to such an extension. With particular relevance to present purposes, Sir Henry de Villiers stated:35 It is not implied in this decision that the application of the conditio si sine liberis to direct legacies to children with a substitution has been an illegitimate extension of the principle by those courts of law (as in Scotland) which have derived it from the Roman law, and their Lordships recognise the strength of the reasoning by which that extension is justified. It is enough for the decision of the present case to say that the Roman-Dutch law has not so proceeded and it is for their Lordships to apply the law as it stands.

The decision in Galliers v Rycroft was criticised from the outset. In a note which appeared in both the South African Law Journal and the Law Quarterly Review,36 “JDW” specifically considered the Roman texts in a 33 34 35 36

[1901] AC 130 at 135. At 138. At 139. “The conditio si sine liberis decesserit” (1901) 18 SALJ 177 and (1901) 17 LQR 109.

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comparison between their import in Scotland and in South Africa. It was noted that in Scotland the fideicommissary substitution was no longer recognised as effectual, but that the conditio applied in cases of direct substitution. The author took the view that the Roman texts, particularly Codex 6.25.6, certainly allowed the conditio to be applied to both direct and fideicommissary substitutions. In any event, he considered that the law in relation to both had been assimilated by the time of Justinian. The effect was that South African law was now out of kilter with the Roman authorities. The author concluded:37 There seem therefore to be substantial grounds for believing that the Scottish Courts of the 18th century were right in holding that the three texts of the Corpus Juris on which the conditio sine liberis was founded applied alike to legata and fideicommissa and their respective substitutions.

(3) Some conclusions Some conclusions are possible. The conditio si institutus sine liberis decesserit had a Roman law basis, but this was in keeping with what Scots domestic law would probably have held in any event. In South Africa, the decision of the Privy Council in Galliers v Rycroft38 retained the Roman basis but restricted it to fideicommissary substitutions; while Scotland, not having developed a full fideicommissary law of its own, built upon the Roman foundations in the case of conditional institutution. C. WHERE IS IT NOW? (1) South Africa The conditio si institutus sine liberis decesserit appears to exist in two, and perhaps three, forms in modern South African law. (a) Fideicommissary substitution The most obvious form is the original, in relation to fideicommissary substitution. It is only here that the phrase “si sine liberis decesserit” is used in relation to an implied condition. Of course, a fideicommissum may have an express clause si sine liberis decesserit; but even in its absence the condition will sometimes be implied. Thus:39 37 At (1901) 18 SALJ 180 and (1901) 17 LQR 111. 38 [1901] AC 130. 39 Corbett et al, Succession 294.

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where a testator has instituted a child or remoter descendant as heir or legatee and has directed that upon the death of this beneficiary the inheritance of legacy is to go over to a third person, then, in the absence of a contrary intention appearing from the will, such gift over is regarded as being subject to the condition, implied by law, that the deceased heir or legatee left no issue.

An important illustration is Estate Cato v Estate Cato.40 In a thoroughly confusing will, a testator left a life interest to his widow, and his property was to be divided among his children when the youngest attained the age of twenty-one. If there was no survivor from these children, the estate was to go to specified nephews and nieces. All the children survived the testator, but some died during the widow’s lifetime. It was held that there was a conditional fideicommissum in favour of the nephews and nieces only if there were no surviving issue (of any degree) of the testator at the date of division. In addition, the rule was not displaced merely because the testator knew of the existence of his own grandchildren at the date of the will and apparently chose not to refer to them specifically. The question of what happens to the property if the fideicommissary condition is not satisfied, because of the existence of issue of the institute on that institute’s death, has only been addressed relatively recently. In Du Plessis NO v Strauss41 it was held that a further, tacit fideicommissum would be created in favour of the descendants of the institute, as long as they were also the descendants of the testator.42 This is of course a necessary condition to allow the conditio si institutus to be implied in any event. But such a condition might be expressly inserted for other beneficiaries. Thus in South African law the conditio si institutus is certainly alive and well in the case of fideicommissary substitution. (b) Direct substitution The second situation arises by virtue of statute and is not currently referred to as the conditio si institutus. Yet the statutory rule is much closer to the Scottish rule than to that applying in fideicommissary substitution. The original provision was enacted as section 24 of the General Law Amendment Act 32 of 1952, and was intended to reverse the decision in Galliers v Rycroft,43 by restoring a version of the conditio si institutus to 40 1915 AD 290. 41 1988 (2) SA 105 (A). 42 See D P Visser and D B Hutchison, “Legislation from the Elysian Fields: the Roman-Dutch authorities settle an old dispute” (1988) 105 SALJ 619. 43 [1901] AC 130, discussed at B.(2) above.

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direct substitution.44 Following changes recommended by the South African Law Commission, 45 the current version is found in a provision of the Wills Act 7 of 1953, section 2(C)(2), which was added in 1992.46 It reads: (2) If a descendant of the testator, whether as a member of a class or otherwise, would have been entitled to a benefit in terms of the provisions of a will if he had been alive at the time of death of the testator, or had not been disqualified from inheriting, or had not after the testator’s death renounced his right to receive such a benefit, the descendants of that descendant shall, subject to the provisions of subsection (1), per stirpes be entitled to the benefit, unless the context of the will otherwise indicates.

This extended the 1952 provision by applying the rule to all types of benefit. There was also an extension to all descendants, including adopted and extramarital descendants. The provision has been held not to apply to fideicommissary heirs, where one such heir predeceases the testator.47 (c) Comparison with Scots law While most aspects of the Wills Act provision48 would also apply under the common law doctrine in Scotland, a number of exceptions may be mentioned. In the first place, the South African provision applies to any descendant “whether as a member of a class or otherwise”. This will certainly not always be the case in Scotland where the conditio si institutus may be excluded if the beneficiaries are named and not called as a class49 – although it is typical of the varying approaches taken by the Scottish courts that the naming of members of a class is not always fatal to the application of the conditio si institutus.50 Secondly, the South African provision applies to any benefit to be received by the institute. The Scottish rule is not so broad, for the conditio will often be excluded where the subject of the bequest is specific or pecuniary.51 Next, the rules about the institute being disqualified from inheriting, or renouncing the benefit, would almost certainly not apply in Scotland unless 44 See H R Hahlo and E Kahn, “A new presumption in the law of testamentary succession: section 24 of the General Law Amendment Act 1952” (1952) 49 SALJ 396 at 398. 45 South African Law Commission, Review of the Law of Succession (Report 22, 1991). 46 Act 7 of 1953, inserted by the Law of Succession Amendment Act 43 of 1992 s 4. 47 Reek NO v Registrateur van Aktes, Transvaal 1969 (1) SA 589 (T). 48 I.e. Wills Act 7 of 1953 s 2C(2). 49 Gillespie v Mercer (1876) 3 R 561. 50 Allan v Thomson’s Trs (1893) 20 R 733, in which the conditio was held to apply to the residue clause) but not to a pecuniary legacy in the same will. 51 Brown’s Trs (1882) 10 R 441; Allan v Thomson’s Trs (1893) 20 R 733.

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the will in question made specific provision for such circumstances to be treated as if the institute had predeceased. Finally, the South African rule is excluded if “the context of the will otherwise indicates”. For this reason the provision would have made no difference to the result in Galliers v Rycroft,52 where the direction was to distribute “among my children or such of them as may be alive”. 53 This seems sufficient to rebut the presumption that the testator did not intend to exclude more distant descendants. But it would certainly be insufficient to exclude the application of the conditio in Scots law.54 This marks a major difference between the two versions of the rule. (d) A third version As well as the fideicommissary and the statutory versions of the conditio si institutus, it appears that South Africa may also recognise a third version. This arises from the rule in direct substitution for an implied clause by what is referred to as a “necessary implication”.55 Thus it seems that a substitution in favour of descendants will be implied where this was what the testator apparently intended in relation to an event which was contemplated by him.56 Of course, the doctrine of necessary implication is much wider than the conditio si institutus, but it may have been a means of applying something very similar before the introduction of the statutory provision in 1952. (2) Scotland In Scotland, the existence and form of the conditio si institutus have developed entirely through what has been quite extensive case law. It is not intended to cover the current position in any great detail, as other accounts are readily available.57 The basic rule is that where there is a legacy in favour of a beneficiary, and where that beneficiary predeceases the testator (or later time of vesting) leaving issue, then those issue may take to the exclusion of any conditional institute, residuary legatee or intestate beneficiary. The limitations are now clearly fixed. The rule only applies in relation to bequests to certain classes 52 53 54 55 56 57

[1901] AC 130. See Corbett et al, Succession 216-217; Hahlo & Kahn (n 44) at 398. Devlin’s Trs v Breen 1945 SC (HL) 27; McGregor’s Trs v Gray 1969 SLT 355. See Corbett et al, Succession 212 and the authorities there cited. See, e.g., Estate Warren v Hulett and Others 1949 (3) SA 229 (N). M C Meston et al, “Wills and Succession”, in The Laws of Scotland: Stair Memorial Encyclopaedia vol 25 (1989) paras 894-901; D R Macdonald, Succession, 3rd edn (2001) paras 10.59-10.69; H Hiram The Scots Law of Succession (2002) paras 8.36-8.51; Macdonald (n 6) at 278-288.

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of relative – at one time the children of the testator, but later extended to grandchildren, great-grandchildren and (probably) any descendant.58 Further extensions have been more controversial. An early case applied the rule not only to nephews and nieces but also to a niece of the testator’s husband,59 while other relatives have been included at various times.60 This liberal tendency was, however, firmly and finally checked by the decision in Hall v Hall.61 In Hall v Hall it was necessary to decide whether the conditio si institutus applied to bequests in favour of the testator’s siblings. It was held that it did not apply, and that the conditio was restricted to actual descendants with the rather anomalous addition of nephews and nieces (and their descendants). The extension to nephews and nieces was hedged with the requirement that the testator must have stood in loco parentis, but this is generally felt to be meaningless and indeed circular. On the one hand, by making provision for such nephews and nieces in a will, the testator is demonstrating by that fact alone that he acts in loco parentis.62 On the other hand, it appears not to matter whether the testator had acted in this manner during his lifetime – or indeed whether the actual parents of the nephews and nieces were alive at the date of the will.63 The conditio extends to children born outside marriage64 and adopted children,65 as well as to descendants of institutes in such categories. It does not extend to stepchildren.66 The closing of categories in Hall v Hall67 was accompanied by some important comments by the consulted judges on the origins, nature and development of the rule in Scots law. It was described as coming from Roman law “or by an analogical application of its principles”:68 But as the authority of the Roman law is referred to in the argument in favour of the extension of the rule in question to the present case, it may be pointed out that the law of Scotland which goes by the name of the “conditio sine liberis” is by no means identical with the “conditio” of the Roman jurisprudence. While in one direction, our judges have sought to confine its application by means of the expression to be found in almost all the reported cases, that the benefit of the conditio 58 Mowbray v Scougall (1834) 12 S 910; Grant v Brooke (1882) 10 R 92. 59 McKenzie v Holte’s Legatee (1781) Mor 6,602; see also Wallace v Wallace (1807) Mor App “Clause” no 6. 60 E.g. cousins: see Christie v Paterson (1822) 1 S 498. 61 (1891) 18 R 690. 62 Bogie’s Trs v Christie (1882) 9 R 453. 63 Knox’s Exr v Knox 1941 SC 532. 64 Law Reform (Miscellaneous Provisions) Scotland Act 1968 s 1. 65 Succession (Scotland) Act 1964 s 23(1). 66 Sinclair’s Trs v Sinclair 1942 SC 362. 67 (1891) 18 R 690. 68 (1891) 18 R 690 at 698 per the consulted judges.

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is confined to persons to whom the testator placed himself in loco parentis, in another direction the rule of our law has a wider extension than that of the Roman system. Under our system, the liberi or issue of the persons instituted, have the benefit of the implied condition in preference to next of kin of the testator. But the case treated in the Digest is the case of a gift to an institute with a conditional institution in favour of a stranger or remoter heir, in which case only it was considered that the testator would have preferred the issue of his immediate legatee to the stranger, if he had contemplated the case of the death of the legatee before the opening of the succession. According to the principles of construction of wills which are now received and acted on, it is probable that we should not feel justified in introducing such a rule at all, if the question were now to arise for the first time; for it must be admitted that the effect of the conditio is to import into the will something which is not there, although this is accomplished by an artificial rule of construction. The same reasons which raise a doubt as to the validity of the process by which the rule was originally introduced into our law ought, as we think, to incline the Court to refrain from extending the doctrine beyond the limits within which it has hitherto been confined by decisions and the practice following on decisions.

The extension beyond the Roman rule, described in the first paragraph quoted above, happened at a relatively early stage, in the case of Dixon v Dixon.69 It seemed to emphasise the “family provision” nature of the rule, rather than treating it as akin to providing for what a testator might simply have forgotten. Particularly when the alternative to applying the conditio would be intestacy, the application of the rule is in keeping with other principles, and may indeed be more logical than dealing with a situation where the testator has at least considered the possibility of providing for the predecease of the institute by providing positively for a selected alternative. With the basic form of the rule now firmly established, and the presumption in favour of its operation being very strong, the bulk of other case law on the subject in Scotland has been concerned with factors which might prevent its application.70 These cases are largely fact-specific, depending as with all interpretation cases on the particular wording under consideration. D. WHERE IS IT GOING? In both jurisdictions the broad scope of the rule is fairly settled, and in both it is very likely to survive in some form. The prevalence of an analogous rule in other jurisdictions would seem to make this even more likely than otherwise. 69 (1836) 14 S 398, (1841) 2 Rob 1. For a discussion of this case, see text at n 26 above. 70 The factors influencing the application or otherwise of the conditio, along with the relevant case law, are briefly but usefully listed and discussed in Macdonald (n 6) at 286-288.

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In South Africa, the “pure” rule in fideicommissary substitution seems reasonably clear and would presumably be altered only as part of more general changes in the law of fideicommissa. The statutory rule has been reformed relatively recently, in 1992, following a report of the Law Commission, and there seems no immediate prospect of further change. In Scotland, the Law Commission has also reviewed the rule, and, while recommending its retention, favoured dispensing with its Latin name and giving it a statutory basis. 71 That statutory basis would have confined the rule to descendants, thus removing nephews and nieces from its ambit. It would also have made it much easier for testators to exclude the rule by expressing contrary intentions in the will. On this point, the relevant clause in the Law Commission’s draft bill goes on to provide that:72 the will shall in particular be regarded as having clearly intended otherwise if the will provides (expressly or by implication) that the bequest is made to – (a) the beneficiary and another person or persons, and the survivor or survivors of them; or (b) the beneficiary whom failing another person or persons.

This draft bill has now been languishing for some seventeen years. It is possible that at least some of it may have a new lease of death (as it were), following a further investigation of different aspects of the law of succession now being undertaken by the Scottish Law Commission. If this particular statutory version of the conditio si institutus sine liberis decesserit were to be enacted, the Scots rule would move considerably closer to the statutory version found in South Africa. In that way it is possible that the common Roman origins of the conditio si institutus in Scots and South African law might be joined by further common considerations in the twenty-first century.

71 Scottish Law Commission, Report on Succession (Scot Law Com No 124, 1990), paras 4.50-4.65. 72 Clause 17(2) of the draft bill included in the Scottish Law Commission’s Report.

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11 The New Dutch Law of Succession Sjef van Erp A. THE NEW LAW IN OUTLINE (1) Introduction (2) Matrimonial property law (3) Intestate succession (4) Testate succession B. ANALYSIS (1) Introduction (2) Protection of the surviving spouse: reflection period (3) Protection of the children: discretionary powers C. SOME COMPARATIVE REMARKS (1) Social changes and revision of succession laws (2) Differences in legal technique (3) Dutch succession law from a comparative angle D. EVALUATING AND CONCLUDING REMARKS

A. THE NEW LAW IN OUTLINE (1) Introduction On 1 January 2003, after a long period of reflection and parliamentary debate, the new Dutch law of succession entered into force as Book 4 of the Civil Code.1 It was accompanied by the new law on gifts in Book 7 (Special Contracts). As can be seen from the legislative history, it took more than thirty years after the enactment of Book 4 before the new law could enter into

1 Kamerstukken [Parliamentary documents] nos 11164 (original text of Book 4 as enacted by the Law of 11 September 1969, Staatsblad 1969, 392); 17141 (amendments to Book 4); 17213 (new Title 3 of Book 7 on gifts); 27021 (further changes in Book 4); 26822 (transitional law); 27245 (adaptation of existing legislation to the new law of succession). Many of the more recent documents can be found at: http://www.overheid.nl/op. The text of Book 4 in its final version can be found at: http://wetten.overheid.nl/; for an English translation, see H Warendorf and I CurrySumner, Inheritance Law Legislation of the Netherlands (2005) 25.

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force.2 Particular controversy had surrounded the position of the surviving spouse and children, especially in a situation where the surviving spouse remarries and the new husband or wife also has children. This chapter outlines the new law of succession, both testate and intestate, focusing on the rights of the surviving spouse and children. It then sets the basic features of the new law against the general part on property law in the new Civil Code, and considers these from the perspective of comparative legal analysis. It is necessary to begin, however, with a few introductory remarks on Dutch matrimonial property law because, as is well known, the law of succession and matrimonial property law are closely interrelated. (2) Matrimonial property law The Netherlands is one of the very few countries left that still knows total community of property if no marriage settlement has been concluded. Under total community of property, everything that the spouses owned from before the marriage, and their debts, become common. Equally, everything acquired during marriage, or debts incurred, is common as well.3 Of course, exceptions exist. In making a gift or a testamentary bequest it is possible to stipulate that what is given will not fall within community of property.4 Furthermore, the spouses are allowed to conclude a marriage agreement in which they deviate from the default matrimonial property regime. In such an agreement spouses frequently exclude the coming into existence of any community of property (a so-called “cold” separation), often, however, supplemented by a contractual duty to share any profits or losses.5 An agreement does not prevent spouses from buying and owning a house together as non-matrimonial (i.e. “ordinary”) common owners. At the time of writing a bill was pending in parliament to replace total community of property with a default regime of limited community. According 2 The legislative history is complicated as a result of the continuous changes made during the long period that it took to finalise this part of the Civil Code. A full, systematised parliamentary history can be found in Gr van der Burght, E W J Ebben and M R Kremer, Parlementaire geschiedenis van het nieuwe Burgerlijk Wetboek: parlementaire stukken systematisch gerangschikt en van noten voorzien, Vaststellingswet Boek 4 Erfrecht (2002). For a general discussion, see M J A van Mourik et al, Handboek Erfrecht (2006). For an overview of the first cases, see W G Huygen, “Kroniek Erfrecht” (2005) Nederlands Tijdschrift voor Burgerlijk Recht 324 ff. The first practical experiences with the new law were discussed during the annual general meeting of Royal Netherlands Society of Notaries in 2006: the papers are published in P Blokland et al, Nieuw Erfrecht in de Praktijk. Een evalutie (2006). 3 Cf Burgerlijk Wetboek (henceforth BW) arts 1:93 ff. 4 BW art 1:94. 5 See also BW arts 1:132 ff.

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to the original proposal, no community of property would arise as to assets and debts from before marriage, or from gifts or bequests after marriage. This, however, attracted criticism and the bill was amended. Under the current proposal, assets and debts from before the marriage will still become the common property of the spouses, but not post-marriage gifts or bequests. Given the uncertainties which still surround these proposed changes, they are not discussed further here.6 Where community of property applies, the community ends with the death of the first spouse, at which point the property is divided in two. This means that the surviving spouse already owns one half of the estate, the other half being part of the deceased’s estate. In addition, the deceased might own private property, resulting, for example, from a clause in a deed of gift or from a marriage agreement creating a limited community of property. (3) Intestate succession If no will has been made that deviates from the provisions of intestate succession, and if the deceased left a spouse and at least one child, the so-called “statutory distribution” applies. Who will be heir is provided for in article 4:10. The article reads in part: Heirs who are called personally by law to inherit a deceased’s estate are, in the following order: (a) the deceased’s spouse who is not judicially separated, together with the deceased’s children …

Article 4:10 lays down the so-called “parentela” system according to which heirs are classified in groups: if heirs can be found within the group firstmentioned, heirs in a later group are automatically excluded. Children are mentioned in article 4:10 as belonging to the first group. Article 4:13 expresses the basic principles of the “statutory distribution”. The spouse acquires the assets of the deceased’s estate by operation of law, and becomes liable for the debts. At first sight, this violates the right of the children to a minimum part of the estate, but it is subject to the principle of forced heirship. Article 4:63(2) states that forced heirs are such descendants as the law designates as intestate heirs, either in their own right or by representation of others who are no longer alive or alive but unworthy. Article 4:64(1) adds that the forced share of a child of the deceased amounts to one half of the value over which the shares of forced heirs are calculated divided by the number of persons left behind by the deceased as mentioned in article 6 Kammerstukken no 28867, available at http://www.overheid.nl/op. The last document sent by the Government to Parliament is dated 14 June 2007.

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4:10(1)(a), already referred to above.7 However, the rights of a forced heir are not immediately realisable. Instead each child has a pecuniary claim against the surviving spouse corresponding to the value of the child’s share in the deceased’s estate.8 This claim is enforceable when the spouse dies or, before then, if the spouse is declared bankrupt or becomes subject to a debt repayment scheme, or in such other circumstances as may have been expressed in the deceased’s will. As further protection, children have a discretionary power to claim a transfer of ownership of assets with a value not exceeding the pecuniary claim. These discretionary powers (so-called wilsrechten, based upon the German concept of the Gestaltungsrechte) can be used in four distinct situations.9 In order to understand the highly complex rules, it should be borne in mind that certain powers concern the estate resulting from the death of the first parent, and that certain others concern the estate resulting from the death of the second (i.e. the initially surviving spouse). A child who has a pecuniary claim against the surviving parent with respect to the estate of the deceased parent10 is given discretionary powers in the event of that parent’s re-marriage. As soon as the surviving parent declares an intention to re-marry, he or she is obliged, on request, to make over to the child assets to the value of the pecuniary claim, but subject to a reserved right of usufruct (unless waived by the parent).11 Alternatively, on the parent’s death, the child can claim the assets in question from the step-parent or other heirs of the deceased.12 The discretionary powers just mentioned concern the 7 Special rules govern the calculation of the estate for purposes of the shares of forced heirs: see BW arts 4:65 ff. Although the surviving spouse is not a forced heir, his or her presence is relevant for the calculation of the shares of those who are forced heirs. For example, if the deceased leaves a spouse and two children, the share of the children as forced heirs is one sixth (half of one third). 8 BW art 4:13(3). 9 See E Seckel, Die Gestaltungsrechte des bürgerlichen Rechts, Sonderausgabe (Darmstadt: Wissenschaftliche Buchgemeinschaft, 1954, based upon a Berlin lecture in 1903); G W Rupke, Wilsrechten (1914); W Snijders, “Wilsrechten in het algemeen en in het nieuwe erfrecht” (1999) 6365 WPNR 558, 6366 WPNR 583, 6367 WPNR 601. Cf E Bucher, Das subjektive Recht als Normsatzungsbefugnis (1965), available at http://www.eugenbucher.ch/pdf_files/03.pdf; E Bucher, Schweizerisches Obligationenrecht, Allgemeiner Teil (1988) 35 ff, available at http:// www.eugenbucher.ch/tempor_ORAT.html. According to Seckel, who developed this legal concept, the so-called private Gestaltungsrecht is defined as “das subjektive (konkrete) Privatrecht, dessen Inhalt ist die Macht zur Gestaltung konkreter Rechtsbeziehung durch einseitiges Rechtsgeschäft” [the subjective (concrete) private right, whose content is the power to shape concrete legal relationships by unilateral legal act]; see Seckel (above) 12. The Dutch term is wilsrechten [literally, rights depending upon what a person wants]: see Rupke (above) 43 ff. 10 I.e., under BW art 4:13(3), mentioned above. 11 BW art 4:19. 12 BW art 4:20.

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estate of the parent who died first. After the death of the second parent, the step-parent becomes a surviving spouse in turn and will inherit everything; but the children have a pecuniary claim – this time against the step-parent – which, as before, is protected by discretionary powers to require a transfer of assets either during the step-parent’s lifetime or after his or her death.13 As before, a lifetime transfer is subject to a reserved usufruct. (4) Testate succession The new Book 4 does not allow complete freedom of testation. The rights of forced heirs have already been mentioned. A second limitation is the right of certain persons to a lump sum payment.14 Two groups can be distinguished. In the first place, a child of the deceased may claim a lump sum for care and upbringing up to the age of eighteen, and for maintenance and education until twenty-one. There is, however, no entitlement to the extent that the deceased’s spouse – or, in the case of care and upbringing, an heir of the deceased – is legally or contractually obliged to provide for the cost.15 Secondly, a child, stepchild, foster child, child-in-law or grandchild of the deceased who, having attained the age of majority, performed work in the deceased’s household or profession or business without proper remuneration may claim a lump sum amounting to fair compensation. The group of forced heirs does not include the surviving spouse. Nonetheless the surviving spouse is given certain minimum rights.16 There is a right to continue living for six months in the house where he or she lived at the time of the death, if the house constitutes part of the deceased’s estate or of the dissolved matrimonial community of property or if the deceased had a right to its use otherwise than pursuant to a tenancy. The same applies to the household effects. Further, the surviving spouse is given a period of reflection as to whether to demand from the heirs a right of usufruct with regard to the house or the household effects, if these are not given to him or her in the deceased’s will.17 If the spouse decides to exercise that right, the heirs must co-operate in establishing the necessary usufruct, and for as long as the spouse is able to insist on the right, the heirs are barred from disposing of the property in question or letting it.18 Furthermore, article 4:30 obliges the heirs 13 14 15 16 17 18

BW arts 4:21 and 4:22. BW arts 4:35 and 4:36. Cf BW art 1:395a. BW arts 4:28 ff. BW art 4:29. BW art 4:29, discussed at B.(2) below.

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to co-operate in establishing a usufruct with respect to other assets of the deceased’s estate to the extent that this is necessary for the spouse’s support. This extends to property which replaced any assets of the deceased’s estate. B. ANALYSIS (1) Introduction Specialisation in the law is frequently unavoidable, given law’s complexity. But it carries the risk of forgetting that certain legal areas are closely interwoven. Not infrequently, succession law is seen by those specialising in this legal field as an area of its own, with its own specific rules. Nevertheless, succession is in its essence the passing of assets and liabilities to others and is, as such, a part of the law of property. If this perspective is lost, it can very well happen that certain arrangements, discussed at great length between experts, do not function as predicted after these arrangements have been embedded in the general law of property with its underlying general policies and principles. The new Dutch law of succession shows some examples of how certain solutions might not function properly, because of a too intense focus on succession law. In what follows I can only touch upon a few of the problems that may arise. (2) Protection of the surviving spouse: reflection period As mentioned earlier, article 4:29(1) gives the surviving spouse a period of reflection to decide whether to require that the heirs co-operate in establishing a usufruct in respect of the house and household effects.19 In order to protect the surviving spouse during the reflection period, article 4:29 provides that, as long as a spouse may claim application of paragraph (1), the heirs are not empowered to dispose of the property in question or to let it or to let it by means of an agricultural lease. During that period, a levy of execution of any such assets may be made only for certain liabilities and obligations of the deceased’s estate. Paragraphs (1) and (2) of article 4:29 apply mutatis 19 In terms of article 4:29 this applies to “the dwelling which forms part of the deceased’s estate in which the deceased and the spouse had lived together or where the spouse was living alone at the time of the death” and to “the household effects which constitute part of the deceased’s estate”. The reflection period lasts for a maximum of six months after the deceased’s death, during which time the surviving spouse must notify the heirs of his or her requirement that a usufruct be created. Otherwise the right lapses. As soon as the surviving spouse uses the wilsrecht with regard to the establishment of a usufruct, there is an immediate claim against the heirs, and the usufruct must be created within a period of one year and three months after the deceased’s death. This is a prescription period: see BW arts 4:31(2), (3).

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mutandis to legatees and the beneficiaries of a testamentary obligation as regards any property which they acquired from the deceased’s estate.20 The aim of the protection provisions is clear. The surviving spouse is given an absolute preference with regard to the house in which he or she lives at the time when the other spouse dies and which they either owned together (frequently as a result of the default matrimonial property regime), or which the other spouse owned alone.21 Under the statutory distribution scheme, the surviving spouse would acquire ownership of the house; but if the deceased bequeaths the house elsewhere, the surviving spouse has the right to become usufructuary with regard to that part of the house that he or she did not already own. Although, therefore, the heirs may own all or part of the house and household effects as a result of the will, they are unable to transfer property rights during the reflection period. Otherwise the right of the surviving spouse could be easily annihilated. For that reason the power to dispose is taken away from the heirs, which means that under the Dutch system of transfer the property cannot be transferred or burdened with a limited real right. Of course, third-party protection rules might interfere, such as article 3:86, protecting the good faith acquirer of movable property. However, the relevant third-party protection rule concerning immovable property can only be invoked in a fairly restricted number of cases and will not apply here.22 Interestingly enough, the absent “power to dispose” includes the power to conclude a contract of lease. In other words, the surviving spouse is not bound by a lease that the heirs conclude in their capacity as owners of the house in which the spouse still lives. This is remarkable because, in the Civil Law, lease only creates personal relations between the lessor and lessee and does not give the lessee a property entitlement. In this respect, article 4:29 looks like a provision that can be found in the law of real mortgages, allowing the mortgagee to include in the mortgage deed a clause that the mortgagor is not allowed to lease the mortgaged property.23 This provision has led to numerous cases concerning when – and, if so, under what conditions – such a clause can be invoked against a lessee, if the lease has been concluded between the time of sale and the time when the mortgage deed is registered. According to the Supreme Court, a balancing of interests must take 20 BW art 4:29(3). 21 The case where the house is rented is not discussed here, as special provisions of tenancy law apply: see e.g. BW arts 7:266 and 7:268. 22 BW art 3:88. 23 BW art 3:264. The idea is equally familiar in Scotland: see Conveyancing and Feudal Reform (Scotland) Act 1970 Sch 3, standard condition 6.

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place, in which the fact that certain information can be found in the public land registry has proved to be a decisive factor.24 The period of reflection, however, does not have to be registered in the land registry. This means that future lessees should ask lessors whether they own the property as a result of succession, whether there is a surviving spouse and, if so, when the deceased died. These are all questions an ordinary lessee will not immediately ask. Suppose the buyer (or his estate agent or notary) made all the necessary inquiries, but received incorrect answers. He is unable to check in the land registry whether the answers are correct, as no entry concerning this lack of power to dispose will be found there. Given that the Dutch system of land registration still is – at least in principle – negative (i.e. a party cannot rely on its completeness and correctness), a party’s good faith will not assist: the surviving spouse could still avoid the lease agreement and demand eviction of the tenant. Both with regard to transfer of the house (and household effects) and also the conclusion of a rent agreement, the surviving spouse is given strong protection against acts by the heirs (in practice usually the children). It seems that during the debates on the position of the surviving spouse, the rights of third parties who acted in good faith were largely ignored. A further difficulty can be raised. It appears from the text of article 4:29, and from its parliamentary history, that once a surviving spouse has elected to require a right of usufruct, the heirs regain their full power of disposal. At one level this seems logical enough, as the heirs cannot create a right of usufruct if they do not have a power of disposal. But this also implies that they are able to transfer ownership to any person, whether in good faith or not. As a result, the surviving spouse seems to lose all protection, after a period of complete protection even against parties in good faith. According to the parliamentary history, this is justifiable on the basis that the withdrawal of the power of disposal is a burden on free alienability and should be limited. If, the parliamentary history continues, the heirs abuse their ownership right, they become liable to the surviving spouse. Nonetheless, in the light of the underlying policy of protecting the surviving spouse with regard to the house in which he or she is living, it is remarkable that the protection, at the end of the day, is reduced to a liability claim.25 The only person who could prevent the heirs from disregarding the entitlement to a usufruct is the notary who, in the case of the house, must 24 See Gay Association HR 7 June 1991, 1992 NJ 262; Metterwoon Vastgoed v Van Ommen HR 15 November 1996, 1997 NJ 508. 25 Van der Burght, Ebben and Kremer, Parlementaire geschiedenis van het nieuwe Burgerlijk Wetboek (n 2) 1716.

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draw up the deed of transfer. The fact that the heirs violate their parent’s right could perhaps be a ground for refusal to produce the necessary deed. But what if the buyer is in good faith? Is he not equally entitled to protection, particularly given that the heirs are no longer limited in their power of disposal? It is submitted that problems are to be expected here and that there are no ready answers. The foregoing suggests that, during the debates on the new law of succession, this particular area should have been analysed more closely from the perspective of the general law of property. Of course, it was recognised that succession law is a part of property law.26 The general provisions on the right of usufruct as laid down in Title 8 of Book 3 apply to the rights of usufruct that have to be created under Book 4. The method by which this is done is, however, complex. With regard to the right of usufruct that is created following the exercise of the appropriate discretionary power by children,27 article 4:23 states that the general provisions of Book 3 apply albeit with changes; and so far as concerns the article 4:29 usufruct in respect of the house and household effects, article 4:31 declares article 4:23 applicable, again with some modifications. In other words, article 4:31 refers back (with changes) to article 4:23, which in turn refers back (with changes) to the provisions in Book 3 on usufruct. But in spite of this complicated legislative technique, and the many questions which have already arisen concerning the partial applicability of the provisions from Book 3, a clear connection has at least been made to the general part of the law of property.28 This connection is totally lacking with regard to the limitation of the heirs’ power of disposal during the period of reflection given to the surviving spouse. It is equally lacking with regard to the discretionary powers (wilsrechten) of the children. (3) Protection of the children: discretionary powers We have seen that in two situations the discretionary powers given to children result, not in a transfer of full ownership, but in a transfer of bare ownership burdened by the right of usufruct of the surviving parent or step-parent.29 In 26 Remarkably enough, in the German legal tradition it has been suggested that property law derives its identity from neither the law of obligations nor the law of succession. Cf W Wiegand, “Die Entwicklung des Sachenrechts im Verhältnis zum Schuldrecht”, 1990 Archiv für die civilistische Praxis 112 ff. 27 As to which see A.(3) above. 28 Cf T J Mellema-Kranenburg, C A Kraan, I J F A van Vijfeijken and J P M Stubbé, Vruchtgebruik, Preadvies uitgebracht voor de jaarlijkse Algemene Ledenvergadering van de Koninklijke Notariële Beroepsorganisatie (1999). 29 See A.(3) above.

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the case of immovable property it will be necessary to register the usufruct in the land registry, putting third parties on notice. Third-party protection rules will not, therefore, apply. The position in respect of movable property is different. With movables, a right of usufruct means that the property will remain under the control (possession) of the surviving parent or step-parent. What if the parent or step-parent transfers the movables to a good faith third party? In that case article 3:86 will apply, protecting the third party provided that value was given and possession taken, and the heirs will lose their right of bare ownership.30 Naturally, the heirs will have a damages claim against the parent or stepparent, but the whole purpose of the discretionary powers is that children will receive the actual assets. Again, the relationship with the general law of property has not been sufficiently considered, with the result that the balance of interests, as envisaged by the legislator, between the surviving parent or step-parent and the children may not be properly achieved. C. SOME COMPARATIVE REMARKS (1) Social changes and revision of succession laws Before discussing Dutch succession law from a comparative viewpoint, it might be helpful to look briefly at the changes in society that have prompted recent revisions of succession laws.31 A prime example of a recent revision is the US Uniform Probate Code (UPC), a model law drawn up by the National Conference of Commissioners on Uniform State Laws.32 Article II of the UPC, concerning intestacy, wills and donative transfers, was revised in 1990. It may be useful to quote from the prefatory note: In the twenty or so years between the original promulgation of the Code and the 1990 revisions, several developments occurred that prompted the systematic round of review. Three themes were sounded: (1) the decline of formalism in favor of intent-serving policies; (2) the recognition that will substitutes and other inter-vivos transfers have so proliferated that they now constitute a major, if not the major, form of wealth transmission; (3) the advent of the multiple-marriage society, resulting in a significant fraction of the population being married more than once and having stepchildren and children by previous marriages and in the 30 Cf BW art 3:90(2). See also P Blokland, “Een evalutie van het versterferfrecht (en enige kanttekeningen met betrekking tot andere wettelijke rechten en uiterste wilsbeschikkingen”, in Blokland et al, Nieuw Erfrecht in de Praktijk (n 2) 63. 31 See also S Van Erp, “New developments in succession law”, in K Boele-Woelki and S Van Erp (eds), General Reports presented at the XVIIth World Congress of Comparative Law (2007). 32 L H Averill, “An eclectic history and analysis of the 1990 Uniform Probate Code” (1992) 55 Albany Law Review 891.

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acceptance of a partnership or marital-sharing theory of marriage.

Writers such as Spitko and Fellows have analysed the themes sounded in the prefatory note. Spitko found seven values expressed in Part II of the Uniform Probate Code: (1) promotion of donative freedom (2) desire for simplicity and certainty (3) de-emphasis of formalism (4) movement toward the unification of the subsidiary laws of wills and will substitutes (5) endorsement of the “marital-sharing” theory (6) responsiveness to the changing nature of “family”, and (7) desire for multi-state uniformity in succession law.33 In relation to the changing nature of family (value (6)), Fellows refers to an increased number of blended families (families with step-parents and stepchildren), single-parent households, and unmarried opposite-sex and same-sex couples, including some with children.34 Following on from these developments, it could be said that systems of succession law which have as their underlying model of family law a life-long relationship between married heterosexual partners will no longer apply to a growing number of people. Within the context of this chapter it is impossible to discuss these points further. Nevertheless, it can be said that the changes in family relationships described by Spitko and Fellows can be found in Dutch society as well, particularly the move towards a multiple-marriage society, based upon a partnership/marital-sharing theory of marriage, and an increased number of blended families, single-parent households and unmarried couples.35 Some of the other points that Spitko mentions (unification of the subsidiary laws, desire for multi-state uniformity in succession law) are not relevant within the national Dutch context, but are certainly relevant within the 33 E G Spitko, “The expressive function of succession law and the merits of non-marital inclusion” (1999) 41 Arizona Law Review 1063 at 1066. 34 M L Fellows et al, “Committed partners and inheritance: an empirical study” (1998) 16 Law and Inequality: A Journal of Theory and Practice 1 at 2. 35 Cf A M Valario, “Spousal election: suggested equitable reform for the division of property at death” (2003) 52 Catholic University Law Review 519 at 532 n 50, referring to M A Glendon, The transformation of family law: state, law, and family in the United States and western Europe (1989) 131: “The partnership theory of marriage, sometimes also called the marital-sharing theory, is stated in various ways. Sometimes it is thought of as ‘an expression of the presumed intent of husbands and wives to pool their fortunes on an equal basis, share and share alike’.” Valario adds: “Under the partnership approach, the economic rights of each spouse are seen as deriving from an unspoken marital bargain under which the partners agree that each is to enjoy a half interest in the fruits of the marriage, i.e., in the property normally acquired by and titled in the sole name of either partner during the marriage (other than in property acquired by gift or inheritance). A decedent who disinherits his or her surviving spouse is seen as having reneged on the bargain. Sometimes the theory is expressed in restitutionary terms, a return-of-contribution notion. Under this approach, the law grants each spouse an entitlement to compensation for non-monetary contributions to the marital enterprise as ‘a recognition of the activity of one spouse in the home and to compensate not only for this activity but for opportunities lost’.”

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European context. At the level of the European Union, however, uniformity of substantive succession law is not on the agenda of the European Commission,36 although a Green Paper published in 2005 considered certain aspects of private international law.37 (2) Differences in legal technique With regard to the various succession law techniques which may be used, Verbeke and Leleu distinguish a number of characteristic fault lines.38 First of all, concerning the transfer of the estate they distinguish (1) the French type of direct and immediate transfer (the so-called “saisine”) (2) the Austrian type of direct but deferred transfer, and (3) the English type of indirect and deferred transfer (the executor/administrator manages and liquidates the estate as trustee for the heirs). Secondly, with regard to the liability of heirs, again three models can be distinguished: (1) the French type tending towards unlimited liability (2) the German type tending towards limited liability, and (3) the English type of strictly limited liability. Thirdly, common principles were found by Verbeke and Leleu with respect to intestate rights and the rights of the surviving spouse vis-à-vis the children. The starting point is consanguinity, preferring descendants to ascendants while excluding those who are not close relatives. Illegitimate children are treated equally with legitimate children, and the surviving spouse is given special protection through provisions in the law of matrimonial property, the law of succession or both. Fourthly and finally, two models can be distinguished with regard to freedom of testation. Some legal systems (such as France and the Netherlands) recognise forced heirship (entitling the heir to a minimum part of the estate) and hence only a limited freedom of testation, although there is a trend towards limiting the group of forced heirs and restricting their claim to money rather than particular property.39 Other systems (England) allow full freedom of testation, subject to the possibility of certain relatives (surviving spouse, children) making a judicial claim for financial provision.

36 A Verbeke and Y-H Leleu, “Harmonisation of the law of succession in Europe”, in A Hartkamp et al (eds), Towards a European Civil Code, 3rd edn (2004) 335 ff. 37 Commission of the European Communities, Green Paper: Succession and Wills, COM(2005) 65 final {SEC(2005) 270}. 38 See also chapter 1 above, and K H Neumayer, “Intestate Succession”, in International Encyclopedia of Comparative Law vol V ch 3 (2002). 39 For a defence of forced heirship in American law, see R C Brashier, “Protecting the child from disinheritance: must Louisiana stand alone?” (1996) 57 La LR 1.

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(3) Dutch succession law from a comparative angle Although societies may go through the same or comparable changes, and legal systems may share the same social values, it does not follow that these legal systems will reach the same results in the revision of their succession laws. And even where the results are broadly the same, there will still be differences in legal technique. In embarking on comparative analysis, it is tempting to take one’s own legal system as a starting-point and to conclude that, because in other systems different choices have been made, these other systems chose wrongly. With this caveat in mind, a few tentative comparative remarks may be made. To some extent, the new Civil Code is an expression of the openness of Dutch law and its willingness to consider foreign solutions.40 This mentality has led to provisions which are interesting for those who want to study what might be called the productivity of comparative legal analysis. Sonnekus has said that the new Dutch law represents a move away from classical Romanistic lines and towards the Germanic fold.41 This does not mean – and I am certain that Sonnekus did not intend to argue this – that certain French legal notions no longer have influence. On the contrary, Dutch succession law shows a legal mixture or eclecticism that is in conformity with what can be seen in other parts of the new Dutch Civil Code. Dutch law belongs to the group of systems in which the deceased’s estate passes directly and immediately to the heirs, in which certain heirs are entitled to a minimum share in the estate (forced heirship, entitling the heir to a money claim), and where the surviving spouse is given special protection. Dutch law adheres to the parentela system as described above, preferring descendants to ascendants. Furthermore, illegitimate children are treated on an equal footing with legitimate children, and, following the acceptance of same-sex registered partnerships and marriages, a surviving same-sex partner is treated like a surviving spouse. As a result, questions which have been raised in, for example, American law concerning inheritance rights of “committed partners” only arise in Dutch law with regard to people who live together without being married or having concluded a registered partnership.42 Under 40 See for the United States: F H Foster, “Linking support and inheritance: a new model from China”, 1999 WisLRev 1199 at 1207 ff, esp nn 41 ff. 41 J C Sonnekus, “The new Dutch Code on succession as evaluated through the eyes of a hybrid legal system” (2005) 13 ZEuP 71 ff, 86. For a comparative analysis see also A L P G Verbeke, “Het nieuwe erfrecht internationaal gesitueerd” (2003) 6516 WPNR 20 ff. Also Van Mourik et al, Handboek Erfrecht (n 2) 307 with regard to forced heirship, where a move from French to German law can be seen. 42 See Fellows et al (n 34).

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Dutch law, and from a property perspective, a registered partnership has the same status as a marriage.43 A critical question that could be asked from a comparative viewpoint is whether, in the light of the multiple-marriage society, the discretionary powers (wilsrechten) of the children afford them sufficient protection. If a surviving parent remarries, then, under the default matrimonial property regime, all of his or her property becomes the common property of the step-parent; and if this marriage then ends in divorce, the step-parent can claim half of the existing property, including property which the surviving parent inherited from the deceased spouse. How are the children then protected, unless they used their discretionary power concerning transfer of ownership at the time when the surviving parent announced the remarriage? Under Dutch law it could be argued that reasonableness and fairness, which govern the relations between those entitled to property that has to be divided among them, imply that the assets inherited from the deceased parent are to be given to the surviving parent. But this is not a secure basis for the protection of children’s rights with regard to assets that originally belonged to the deceased parent. It could, of course, be said that the children have accepted the risk by choosing not to exercise their discretionary power; but this seems hardly fair where the non-exercise was in order to allow the parent to remarry without property constraints. The basic policy underlying the new succession law is to create a workable balance between the rights of the surviving spouse and the rights of the children, resulting in compromise solutions – for example, the giving of a money claim to the children which is only enforceable in certain circumstances. Yet a failure to invoke the discretionary power in the case described above could result in severe disadvantage for the child in question. In my view this contradicts the policy of the new law.44 D. EVALUATING AND CONCLUDING REMARKS The new Dutch law of succession is in part influenced by developments that are shared by all western societies, but it is in part also the expression of changes in Dutch society as well as of Dutch notarial practice under the old Civil Code. Where spouses made a will under the former law, they nearly 43 BW art 1:80b. 44 Unless, as seems to be happening in practice, the testator removes the discretionary powers in his or her will as an expression of a desire to give the surviving spouse full freedom to dispose of the estate. See BW art 4:25(6): “By testamentary disposition the deceased may extend, limit or lift the obligations referred to in Articles 19 to 22, inclusive.” Cf Huygen (n 2) at 328; Blokland (n 29) at 65 ff.

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always chose a regime that closely resembled the new statutory distribution. It is therefore unsurprising that the legislature decided that this should become the default regime for the future. The balance now struck between the rights of the surviving spouse and the rights of children can aptly be characterised as the result of Dutch legal culture. A solution has been found that satisfies the wishes of most spouses as to what should happen after their death, safeguarding the position of the spouse who survives without completely disinheriting the children. Admittedly, the new rules can be criticised, but such criticisms result more from internal inconsistency than from mistakes which could have been avoided by a closer look at foreign succession laws and at the social and legal changes that can be seen abroad. A main point of criticism concerns the too-narrow focus on the rules of succession law as if they formed a code separate from the rest of the law. This approach was caused by the debate – partly rational and partly emotional – on the rights of the surviving spouse vis-à-vis the rights of the children, and the resulting focus merely on the text of the bill. The new succession law, however, is a part of a new Civil Code; and if it had been viewed more often in the light of the general (property law) part of that Code, it would have been possible to anticipate or even avoid the matters that might yet disrupt the legislative scheme.

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12 Revocability of Mutual Wills Alexandra Braun A. THE DILEMMA OF MUTUAL WILLS B. REVOCATION IN ROMAN-DUTCH LAW C. THE POSITION OUTSIDE THE NETHERLANDS (1) Continental Europe (2) England D. THE CONTRACT THEORY (1) Germany (2) England (3) Scotland E. SOUTH AFRICA F. CONCLUDING REMARKS A. THE DILEMMA OF MUTUAL WILLS Mutual wills have attracted little interest among legal scholars. Partly, no doubt, this is because only a few jurisdictions recognise their validity, and in some of these they have fallen out of fashion.1 This is somewhat surprising since, in the past, mutual wills were in use almost all over Europe, especially in the northern regions, and they were widespread in a number of jurisdictions which consider them unlawful today. Developed by custom in the late Middle Ages, mutual wills were recognised as a valid legal instrument in the ius commune.2 Until the age of codification, they represented a valuable device for families to protect their estates and dispose of them in a way which was consistent with their long-term objectives. In many cases they provided a mechanism of guaranteeing rights of enjoyment to the survivor while at the same time assigning certain items of property to selected beneficiaries. But if this is so, why did the process of codification often bring about the demise of this legal instrument? In order to understand the reasons, it is first necessary to consider the characteristics of mutual wills. This task is less easy than one would think, for the definitions given in those countries which 1 For a survey of the law of succession in Europe, see R Süß and U Haas (eds), Erbrecht in Europa (2004). 2 H Coing, Europäisches Privatrecht vol I (1985) 585-587, vol II (1989) 603-604.

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recognise mutual wills are not uniform. This can be explained to a certain degree by the existence of a broad spectrum of mutual wills. In terms of form, mutual wills – and this is the usual rule – can be executed in a single document, in which case we talk about “joint wills”;3 but they can also be contained in separate documents albeit involving similar terms (“corresponding wills”). In the latter case they might be executed either simultaneously or at different points in time. As far as content is concerned, there is a distinction between mutual wills which (whether or not executed in a single document) contain reciprocal dispositions and those which do not. In fact, mutual wills may contain dispositions also, or even exclusively, in favour of third parties. A further category is those mutual wills in which one will is made in return for the other, so that the validity of one depends on the validity of the other.4 Notwithstanding these differences, one element is common to all mutual wills: the existence of a previous agreement. Mutual wills are thus wills made by two or more persons and in substantially the same terms, in pursuit of a previous agreement to testate in a specific way. In practice, the most frequent case is the one in which two testators, usually husband and wife, agree to make wills in which they leave their estate to each other, providing at the same time also for the eventual death of the survivor. Frequently spouses agree to benefit each other, either through reciprocal life interests, with a remainder given over to a third party, or by assigning each other absolute gifts with a substitutionary provision in favour of a third party in the event of the other spouse’s predecease. This agreement is usually intended to remain unchanged over time, so that neither testator is able to revoke the will without the consent of the other. But how can one make sure that this intention is respected and that the expectations of the first to die are not frustrated? As is well known, it is a cardinal principle of the law of wills that a will can be revoked at any time before the testator’s death. Yet if this principle is applied to mutual wills, it would follow that each testator could revoke the will during his or her lifetime (even without informing the other) or after the death of the first to die. Plainly, it would be inequitable to allow secret changes to mutual wills or to allow the surviving testator to benefit under the other’s will but then to revoke his or her own will in breach of the parties’ agreement. The problem therefore arises of how to bind testators without at the same time infringing the principle of free revocability. 3 In South Africa the two terms are usually used interchangeably, even though there can be joint wills which are not mutual: see Heymans v Estate Heymans and the Master 1939 OPD 170. 4 In Germany these wills are called wechselbezügliche Testamente.

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For centuries jurists and judges have engaged with this problem in an attempt to find a satisfactory compromise. But, as we shall see in due course, this was not an easy task and the difficulties eventually contributed to the abolition of mutual wills in many jurisdictions. Roman-Dutch jurists were among the first to examine this complex issue, and played a leading role in suggesting solutions which were discussed and sometimes adopted by courts and jurists of other jurisdictions. The contribution to European legal science of Roman-Dutch jurists has often been underestimated or unacknowledged,5 but their views on mutual wills had a far-reaching influence that went beyond the French and German territories, and indeed paved the way for the spread of continental ideas in England. This chapter assesses the contribution of seventeenth-century Dutch legal science in this field and its influence on the legal science of Europe. It outlines the development of the ius commune up to the eighteenth century, and then compares the evolution of the law from the eighteenth century onwards in some jurisdictions where mutual wills are still in use, such as Germany, England, Scotland and South Africa. B. REVOCATION IN ROMAN-DUTCH LAW From the sixteenth century onwards, jurists all over Europe generally regarded mutual wills as valid and treated them as two distinct wills, irrespective of whether they were contained in one document or two.6 Even where only one document was used, the will was treated as composed by two distinct individuals, from which it followed that one will could be valid and the other not. Either party was allowed to amend his own will or to make a new one. Therefore each of the wills was considered to be revocable. This position was prevalent throughout Europe and also explains why jurists usually denied the validity of so-called pacta de non mutanda testamentum, agreements to limit the power of revocation.7 5 R Zimmermann, “Römisch-holländisches Recht – ein Überblick”, in R Feenstra and R Zimmermann (eds), Das römisch-holländische Recht. Fortschritte des Zivilrechts im 17. und 18. Jahrhundert (1992) 13. 6 Unless otherwise specified, by “mutual wills” I mean to include both those executed in a single document and those contained in separate documents. 7 For Roman-Dutch authority on this point, see U Huber, The Jurisprudence of my Time (transl P Gane, 1939) 2.12.60-61, 2.20.32; Voet 38.3.10. The same view was also taken in France: see M Lupoi, I Trust nel diritto civile (2004) 47. For developments in Germany, see G Beseler, Die Lehre von den Erbverträgen (1837) vol II, 317. In the German-speaking area some of the authors writing towards the end of the seventeenth century and during the eighteenth century considered such agreements perfectly valid: see J Schilter, Praxis iuris romani in foro germanico iuxta ordinem Edicti perpetui et Pandectarum Iustiniani (1698) vol II, Exercitatio ad Pandectas

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Once it had been established that mutual wills were revocable, the question arose as to the admissibility of a unilateral revocation or a secret revocation during the lifetime of the testators. Nearly everywhere the prevailing view was that each testator could revoke his will, not only against the will of the other testator but also without even informing him. But while in the Netherlands and in Germany this freedom was considered to be unlimited, in France the revocation was held valid only if made subsequent to a communication to the other party. It was said that, although a testator had an absolute freedom to modify the will, this freedom had to be exercised in good faith.8 In other words, previous notice was needed.9 Whilst it was accepted that testators should be substantially free to revoke the will during their joint lifetimes, it was felt that greater protection was required after the death of the first to die. There were two dominant views in Europe. On one side there were those who argued for absolute freedom of revocation, even after the death of one of the testators. This view seems to have prevailed in Italy and Spain, but it was also shared by authors such as the Saxon jurist Benedikt Carpzov10 and the Frisian author Ulrich Huber.11 Both believed that if the surviving testator revoked his will, it was essentially the deceased testator’s fault. When deciding to make a mutual will, he should have known that the survivor could change his mind and modify the will. Therefore, the deceased ran the risk of a unilateral revocation after his death. On the opposing side were those who thought that freedom of revocation should be restricted. The Dutch lawyers were among the first to look for means by which such a restriction could be imposed. Several theories were put forward. It was said, for instance, that a limitation of the power of revocation should be introduced where one spouse, with the consent of the other, made a will of property pertaining to both for the common benefit of their children – that is to say, cases in which one spouse authorised the other to testate in respect of his own property. If that happened, the will was considered to be revocable only by the testator, the other spouse being bound by his original consent to the arrangement. This theory, expounded in the sixteenth century by a Belgian jurist, Petrus Peckius,12 was adopted by

8 9 10 11 12

24, para 15; S Stryk, Usus moderni Pandectarum (1713) 28.3.3; A De Leyser, Meditationes ad Pandectas, 3rd edn (1761-1762) 43, tit VII and VIII (445) and 359, tit. VIII (654). Lupoi, I Trust (n 7) 48-49. Interestingly the Würtembergisches Landrecht of 1609 II. 7 required the testators to give previous notice. B Carpzov, Iurisprudentia forensis romano-saxonia (1638), par III, constit II, def XII. U Huber, Praelectionum juris civilis (1788) 3.28.3.4; Huber, Jurisprudence of my Time (n 7) 2.12.59-61, 2.20.32. P Peckius, De testamentis coniugum, in Opera Omnia (1666) 1.43.1.

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Simon van Leeuwen, who extended it to cases in which the testators regarded their patrimony as consolidated in a single mass.13 Van Leeuwen thought that whenever testators consolidated their estates through mutual wills, and disposed of their joint patrimony, neither could revoke. Each person, in disposing of the estate belonging to both, testated not only for himself but for the other person as well. And as each expressed consent, the will would be elevated into a contract. Such a communion of goods was created by the expression of mutual consent, that is to say by the agreement.14 This theory was not supported by the Frisian author Ulrich Huber. He contended that it was actually contrary to law, for the law prohibited contracts between husband and wife prescribing the manner and extent to which shared property should be enjoyed by the survivor.15 For Huber, contract and will were different instruments. Therefore, the fact that the parties gave consent to disposal was not sufficient to limit the power of revocation.16 Others, such as Hugo Grotius,17 held that if the parties considered their patrimony to be common, the survivor should lose the power of revocation only if he had also enjoyed the benefit. According to him, the survivor who accepted the benefit, bequeathed by the other could not revoke the will. In accepting the benefit he was bound by a quasi-contract to observe the will. The quasi-contract did not arise upon consent being given to make the will but upon the decision to accept the benefit. To sum up, two main theories were discussed by Roman-Dutch lawyers: one side held that testators were bound by a contract which was created by the expression of mutual consent in the will and which became irrevocable on the death of the first; the other thought that it was only by accepting benefit under the will that the survivor entered into a binding obligation. Both theories proceeded from the same premise: that in making a mutual will the testators expressed mutual consent to dispose of their common property. By the end of the seventeenth century, the second theory, put forward by Grotius and supported by other jurists, had become firmly established in the Netherlands.18 13 S van Leeuwen, Censura forensis theorico-pratica (1678) 3.2.16. 14 Voet seems to share Van Leuwen’s position: see Voet 23.4.63, 28.3.11(a). 15 Secretary SA Association v Mostert (1869) 1 Buch 231 at 267 per Denyssen J: “During her husband’s lifetime he had the management of the common estate, he being the curator of her goods and the guardian of her person. No contract, between the guardian and ward during minority is of any force; it is opposed to all principles of law; but if after the death of the husband the wife become sui juris again, the acceptance by her of any benefit under her husband’s will binds her as by contract.” 16 Huber, Praelectionum (n 11) 28.3.4. 17 Grotius 2.15.9. 18 Van Leeuwen shared this view: see Censura forensis (n 13) 3.11.7; Commentaries on the RomanDutch Law (1820) 3.3.8.

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C. THE POSITION OUTSIDE THE NETHERLANDS (1) Continental Europe The issue of the revocability after the death of the first to die also came under scrutiny in other parts of Europe. This was true, for example, of the French and the German territories where the Roman-Dutch theories, and the concept of a common patrimony, could be found both in the writings of jurists and in court decisions. In France some argued that the surviving testator was bound by the agreement which precedes the execution of the two wills.19 On this view, an agreement which was revocable while both testators were alive became irrevocable after one died: through his death the testator executed his promise. Another view was that the acceptance of benefits was necessary. A third view was that revocation amounted to fraud, and the surviving testator was bound by the mutual will as a consequence of the other’s reliance. In Germany, just as in the Netherlands and France, some authors tried to channel mutual wills into the area of the contract20 – a fact which is probably explained by the admissibility of pacta successoria. For example, at the end of the seventeenth century Johann Schilter, while accepting the cardinal principle of freedom of revocation, said that he could not imagine a mutual will without a previous agreement.21 But at the time Schilter was writing, the prevailing view was still that the surviving testator could always revoke his will. A much more resolute position was taken by Samuel Stryk, and subsequently by David Mevius,22 at the beginning of the eighteenth century. In his dissertation De testamentis conjugum reciprocis, published in 1702, Stryk went so far as to declare that every will containing mutual dispositions was irrevocable, at least where the parties had stipulated a so-called pactum de non revocando.23 Many other authors believed that, whenever spouses disposed of their patrimony as if it were a common mass, nominating each other as heirs and disposing of the patrimony of the surviving spouse, the latter was bound following acceptance of the benefits.24 Through the acceptance an obligatio quasi ex contractu arose. 19 On France, see Lupoi, I Trust (n 7) above 51 ff. 20 On Germany, see in particular A Braun, “L’elemento contrattuale nei testamenti concordati: appunti sull’evoluzione storica nel diritto tedesco e inglese”, in M Lupoi (ed), Le situazioni affidanti (2006) 185. 21 Schilter, Praxis iuris romani (n 7) vol II, Exercitatio ad Pandectas 39, paras 56-58. 22 D Mevius, Commentarii in Jus Lubecense libri quinque (1664), P II, tit 1, art 10, Nu 39-43. 23 J S Stryk, De testamentis conjugum reciprocis §§ 71, 74, in Operibus vol XI Diss 26 (1750). 24 Beseler, Die Lehre von den Erbverträgen (n 7) vol II, 334 names Hommel as the person who first put forward the argument. See also the authors cited by C F Mühlenbruch, Fortsetzung von Glück’s Pandekten, vol 38 (1835) 237-238.

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While these theories were being further discussed and refined in Germany – a debate which continued throughout the nineteenth century – legislators in France took the radical decision to bring the debate to an end. With two exceptions, article 77 of an Ordonnance of 1735 prohibited the making of mutual wills contained in a single document, that is to say joint wills,25 and this provision was the basis of article 968 of the Code civil which provides, without exception, that “A will may not be made in the same instrument by two or several persons, either for the benefit of a third person, or as a mutual and reciprocal disposition”. Different reasons have been proposed for the introduction of this prohibition. Some have asserted that the legislator intended merely to prevent one testator from influencing the other.26 In other words, the fact that wills are executed together entails the risk that the parties are not completely free and spontaneous when expressing their intentions. This argument would certainly explain why the legislator decided to abolish only those mutual wills which are joint and not those which are made in different documents but still execute the same agreement. But at the same time, if this was the real reason for the prohibition, why did the legislator not also forbid mutual donations? On this basis, Marcadé believed that the prohibition was motivated by the principle of the absolute revocability of wills.27 Others thought that the reason was to be found in the history of mutual wills. Each testament represents the reason for the other, carrying the risk that one is frustrated if the other is revoked. Moreover, according to Planiol and Ripert, mutual wills could have been seen as a means of getting round the prohibition on pacta successoria.28 In Fenet’s view the decision was provoked by the need to resolve differences amongst the judiciary regarding revocability after the first testator’s death. On the one hand, permitting the surviving testator to revoke his will would mean allowing him to act in breach of the other party’s reliance; on the other, to declare the joint will irrevocable would be tantamount to changing the nature of the testament, which in this case would no longer be a disposition of the testator’s last will. Therefore, according to Fenet, this provision 25 The exceptions were (i) the distribution of the estate by ascendants among their children and descendants, and (ii) dispositions among spouses in those areas where they were allowed to make mutual donations mortis causa. 26 R J Pothier, Traité des propres, des donations testamentaires, in Oeuvres Complètes de Pothier vol 22 (1821) 90-91. C B M Toullier, Le droit civil français, suivant l’ordre du code: ouvrage dans lequel on a tâché de réunir la théorie à la pratique (1828) vol V, 320-321 n 346 contends that it is essential for the testament to be the expression of the will of only one person. 27 V Marcadé, Explication théorique et pratique du code Napoléon, 6th edn (1869) 3-4. 28 M Planiol and G Ripert, Traité pratique de Droit Civil Français vol 5 (1933) 546.

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“fallait, interdire une forme incompatible soit avec la bonne foi, soit avec la nature des testaments”.29 Whatever the true reason, the French provision found its way into the codes of other European countries. An identical prohibition was, for example, adopted in the codes of some pre-unification Italian states30 and in the Italian civil code of 1865, before becoming the subject of article 589 of the Italian civil code in force today.31 In the Netherlands the provision was introduced as article 653 of the Wetboek of 1809, and is now found in article 4:93 of the Nieuw Burgerlijk Wetboek. The same is also true of the civil codes of Belgium,32 Portugal33 and Spain,34 all of which contain provisions prohibiting joint wills. (2) England At the time when the French legislator took his decision, the courts in England seemed still unaware of the existence of mutual wills. The first case was decided only in 1769, about thirty years after the French Ordonnance was enacted. This was Dufour v Pereira.35 The litigation concerned a mutual will, executed in one document, of a husband and wife who had probably originally lived in Geneva.36 After the husband’s death his widow, despite having enjoyed the property under his will, made a new will in breach of the original agreement. The heirs under the first will went to court, and the court came to the conclusion that the surviving spouse was not allowed to make a new will, and therefore revoke the previous one. As the judge, Lord Camden, emphasised, the difficulty of the case arose out of the fact that the court had to face a litigation involving an instrument unknown to the Common Law. Therefore, it was necessary for counsel to consult foreign materials and resort 29 P A Fenet, Recueil complet des travaux préparatoires du Code Civil vol 12 (1968) 553. 30 Codice delle due Sicilie art 833; Codice Parmense art 724; Codice Estense art 692; Codice Albertino art 699. 31 As to the reasons for the prohibition of joint wills in Italy, see especially M Allara, Il Testamento (1936) 240. Interestingly enough, courts in Italy and France have interpreted the same provision in a different way: whereas in France only mutual wills executed in one document, and therefore joint, are void, in Italy the prohibition has been extended to those wills contained in different documents. See Lupoi I Trusts (n 7) 71 ff. 32 Burgerlijk Wetboek art 968. 33 Código Civil art 2181. 34 Código Civil art 669. 35 (1769) 1 Dick 419, 21 ER 332 (henceforth Dufour). The Dickens report reveals only few details about the facts of the case, but fortunately some more elements can be gathered from the transcription of the personal notes taken by Lord Camden, which Francis Hargrave published a few decades later: F Hargrave, Juridical Arguments and Collections vol 2 (1799) 304 at 308. 36 This at least is what is reported by Lord Loughborough, LC, in Lord Walpole v Lord Orford (1797) 3 Ves Jun 402 at 418, 30 ER 1076 at 1084.

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to authors from countries where such testaments were in use.37 Although these authors are not named in either report of the case, they are not difficult to identify. Lord Camden began by declaring that mutual wills are two distinct instruments and therefore revocable. This statement reflects the position taken by the majority of authors on the continent. A mutual will, said the judge, is a mutual agreement, and can be revoked by joint consent or by the consent of one testator who gives notice to the other. As already pointed out, this was the opinion prevailing in France, as opposed to the one established in the Netherlands. Although, however, a mutual will was revocable, the judge considered that he could not allow secret revocation during the parties’ joint lives, or any revocation after the death of one of them. According to Lord Camden, mutual wills were characterised by reciprocity. The property of both testators was put into a common fund, and every devise was the joint devise of both – an argument which strongly echoed the Roman-Dutch theories discussed above. But the main argument on which Lord Camden based his decision was that a mutual will was a mutual agreement, a “contract”. And, according to him “there is not an instance to be found since the jurisdiction was established, where one man has ever been released from his engagement after the other has performed his part”.38 The judge therefore concluded that the surviving spouse was bound to the agreement she had made, her husband having executed his part through his death. As well as appealing to the contractual element intrinsic in mutual will, like continental jurists before him, Lord Camden went on to say that, by refusing to perform her part, the widow was guilty of fraud – a concept previously invoked in France. As a final point Lord Camden added that, in taking the benefit of the bequest, the surviving spouse had renounced her freedom to revoke the will. Again, this is similar to the view prevalent among Roman-Dutch lawyers. As others have pointed out, there are striking similarities between the theories developed on the continent and the arguments employed by Lord Camden,39 and the influence of continental ideas is beyond doubt, especially considering the lack of any English law on the subject.40 But, as we shall see, 37 Hargrave, Juridical Arguments (n 35) 306: “The novelty of the case, more than the difficulty, caused me to suspend my judgment; mutual will being unknown in this country”. 38 Hargrave, Juridical Arguments (n 35) 311. 39 Lupoi, I Trust (n 7) 56-58. This is confirmed also by R Croucher, “Mutual wills: contemporary reflections on an old doctrine” (2005) 29 Melbourne University Law Review 1. 40 That mutual wills represented an instrument unknown to the testamentary law of England was stated also by E V Williams, A Treatise on The Law of Executors and Administrators, 3rd edn, vol I (1841) 9.

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Dufour v Pereira constituted the basis for the development in England of a legal doctrine which, in the course of the last century, has disconnected itself more and more from what had been the Civilian approach. D. THE CONTRACT THEORY (1) Germany At a time when legislators in many European countries had forbidden mutual wills made in a single document, such wills were still in use in England as well as in Germany. As stated earlier, in Germany many of the theories familiar from other parts of Europe were discussed, as jurists attempted to strike a compromise. This was also true of the nineteenth century. Especially with a view to possible codification, Pandectists and Germanists studied not only the origins of mutual wills but the differences between these wills and testamentary contracts, the so-called Erbverträge. In so doing, judges and jurists faced the usual problem of how to respect the principle of freedom of revocation while still holding testators to their agreements. Most of the theories of the ius commune were revived and discussed in relation to this point, and from the debate, which involved jurists as well as courts, three main standpoints emerged.41 Some said that testators were bound by the agreement preceding the making of the will rather than by the will itself, especially when the will was “wechselbezüglich”,42 although it was clear that wills and contracts were different instruments.43 Others thought that, by accepting the benefit, the surviving testator incurred a new and binding obligation.44 Finally, some were convinced that the will remained revocable, but that, in the event of 41 See R Battes, Gemeinschaftliches Testament und Ehegattenerbvertrag als Gestaltungsmittel für die Vermögensordnung der Familie. Versuch einer Grundlegung im Vergleich mit funktionsverwandten Erscheinungen des anglo-amerikanischen und französischen Rechts (1974) 52 ff. 42 I.e. when one testator would not have provided in a certain way if the other had not done the same. See C F Mühlenbruch, Fortsetzung von Glück’s Pandekten (n 24) 209 ff; G Hartmann, Zur Lehre von den Erbverträgen und von den gemeinschaftlichen Testamenten (1860) 121. The view was also adopted by OAG Dresden, 1853, Seuffert’s Archiv 9, 180 (233); OLG Frankfurt am Main, 6 May 1890, Seuffert’s Archiv 46, 103 (162); Reichsgericht, 24 February 1882, Entscheidungen des Reichsgerichts in Zivilsachen 6, 174 (176). For a more detailed analysis, see Braun (n 20) 193-197. 43 OAG Darmstadt, 21 August 1851, Seuffert’s Archiv 6, 221; H Dernburg, Pandekten, 6th edn (1901) vol 3, 184; A Brinz, Lehrbuch der Pandekten, 2nd edn (1886) vol 3, 66. 44 Consider e.g. the following decisions: OAG Cassel, 24 December 1840, Seuffert’s Archiv 1, 93; OAG Darmstadt, 21 August 1851, Seuffert’s Archiv 6, 221; OAG Darmstadt, 14 September 1855, Seuffert’s Archiv 10, 184; OAG Kiel, 29 May 1858, Seuffert’s Archiv 12, 172; OAG Celle, 19 November 1866, Seuffert’s Archiv 20, 232; OLG Braunschweig, 24 May 1884, Seuffert’s Archiv 41, 196; OLG Frankfurt am Main, 6 May 1890, Seuffert’s Archiv 46, 103; OLG Oldenburg, 8 April 1891, Seuffert’s Archiv 48, 97 (II).

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revocation, the surviving testator had to return what he had received.45 When it came to codification,46 a proposal was made in the first commission charged with preparing the Bürgerliches Gesetzbuch (BGB) suggesting the abolition of mutual wills.47 Interestingly, the decision was not motivated by precisely the same factors as in France. Instead, German legislators were concerned, first, that in many cases it was not easy to determine the intention of the testators and, second, that mutual wills limited freedom of revocation. They were even more worried that various features of mutual wills placed them at the midpoint between wills and Erbverträge. Finally, some other countries had already forbidden mutual wills executed in a single document. These arguments did not, however, persuade the second commission, which decided to retain mutual wills, although only for spouses. This reflected the fact that these wills were popular in wide circles of society, and that jurists had expressed themselves in favour of their retention.48 Once again, the various theories were weighed up, but it was the contract theory which had the most influence. On several occasions the commission used the expression “contractual element” or made reference to the mutual consent which is necessarily involved in making the will, an element which is particularly evident when wills are wechselbezüglich.49 Although the term “contract” is not used in the BGB provisions regulating mutual wills, there is no doubt that the legislator intended to create a vertragsähnliche Bindung, an obligation similar to a contractual one, and thus to respect the parties’ intention. Certainly this is the case where mutual wills are considered to be wechselbezüglich, that is to say where one testator would 45 This position was adopted by J C Hasse, Über Erbvertrag, Vertrag über eine fremde Erbschaft, Schenkung Todes halber und wechselseitiges Testament, Rheinisches Museum für Jurisprudenz vol. 3 (1829) 269 ff; Beseler, Die Lehre von den Erbverträgen (n 7) vol II, 1, 332, 339; B Windscheid, Lehrbuch des Pandektenrechts vol 3, 9th edn (1906) § 568. To similar effect is J C Bluntschli, Deutsches Privatrecht, 3rd edn (1864) 735. This view was shared also by a minority within the second commission for the BGB: see Protokolle der Kommission für die Zweite Lesung des Entwurfs des Bürgerlichen Gesetzbuchs, cited in B Mugdan, Die gesamten Materialien zum Bürgerlichen Gesetzbuch für das Deutsche Reich (1899) 722 and 725-726. 46 For a picture of the situation at the moment in which the first commission began its work, see G von Schmitt, Erbrecht, Teil 1, Testament, Erbeinsetzungsvertrag, Gesetzeserben, Pflichtteilsberechtigte, in W Schubert (eds), Die Vorlagen der Redaktoren für die erste Kommission zur Ausarbeitung des Entwurfs eines Bürgerlichen Gesetzbuches (1984) 504-513. 47 See Motive zu dem Entwurfe eines Bürgerlichen Gesetzbuches für das Deutsche Reich, cited in B Mugdan, Die gesamten Materialien (n 45) 133-134. On the other hand, a similar prohibition had been introduced in article 83 of the Hessischer Entwurf and in the Lübisches Stadtrecht, I, 6, § 2, II, 1 § 10. 48 Protokolle der Kommission (n 45) 719. 49 Protokolle der Kommission (n 45) 725 and 726. At page 724 the Commission refers to “[die] dem formellen Testierakte doch nothwendig vorausgegangenen Willenseinigung”.

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not have provided in a certain way if the other had not done the same. This is presumed whenever spouses benefit each other, or when each bequeaths property to the other, whom failing to a third person who is close to the other spouse in the event of that spouse’s predecease.50 In such a case the BGB provisions regulating the rescission of testamentary contracts (Erbverträge) are applied. This means that when both spouses are still alive, a unilateral revocation is allowed only where there was a previous communication attested by a notary,51 while any right to revoke falls on the death of the first spouse, and the surviving spouse may revoke his will only if he renounces his right to receive any benefit under the will of the first to die.52 In contrast, those mutual wills which are not wechselbezüglich may be revoked at any time, both during the lifetime and after the death of one of the testators. It may be said, therefore, that the BGB provisions are founded on the contractual element, while still maintaining wills and contracts as different instruments. (2) England The contract theory, which strongly influenced the work of the second commission for the preparation of the BGB, also met with widespread approval in England.53 In the leading case of Dufour v Pereira,54 discussed earlier, Lord Camden referred to mutual wills in contractual terms, while in Hobson v Blackburn, a case of 1822, the Prerogative Court emphasised that at the heart of a mutual will was a “compact”.55 Both cases involved joint wills, but the element of contract was also found when wills were executed in different documents, as in Lord Walpole v Lord Orford (1797).56 In this case Lord Loughborough spoke about an “agreement”, while in Stone v Hoskins, decided in 1905, Sir Gorrell Barnes used the expression “arrangement”.57 From the outset, therefore, English judges placed considerable emphasis on the agreement which, as Lord Camden said, binds testators to a certain extent. Each can revoke the will but must give notice to the other in order to allow him the opportunity to change his testament. In the event of a revocation without notice, the other testator is considered to have the right to claim 50 51 52 53 54 55 56 57

BGB § 2270(2). BGB §§ 2271(1) and 2296. BGB § 2271. For a more detailed analysis of the development of the contract theory in England, see Braun (n 20) 203-210. (1769) 1 Dick 419, 21 ER 332, discussed at C.(2) above. Hobson v Blackburn (1822) 1 Add 274 at 279, 162 ER 96. Lord Walpole v Lord Orford (1797) 3 Ves Jun 402, 30 ER 1076. Stone v Hoskins [1905] P 194 at 195.

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damages for breach of contract although, to this day, no cases have occurred in which courts have had to face this problem. As to revocation after the death of the first to die, courts in England initially focused on the survivor’s acceptance of benefit. This view, which prevailed in the Netherlands, was mentioned in Lord Camden’s opinion in Dufour. The modern approach is different. The first to die is now considered to have executed his part of a promise not to revoke, with the result that the survivor is bound by the agreement and becomes a trustee in favour of the beneficiaries under his previous will. A new will, executed in breach of the previous agreement, is admitted to probate,58 but a constructive trust arises in favour of the beneficiaries of the original will.59 While attention in Germany focused on the contractual element inherent in mutual wills, in England a different approach was progressively adopted. In recent years English judges have started to explain what is meant by the expression “contract”. For example, one of the first issues addressed was whether it was sufficient to find an agreement to make similar wills or whether it was also necessary for the testators to have agreed not to revoke the will; and whereas the former view prevailed towards the end of the nineteenth century, from 1925 onwards judges changed their approach.60 As a consequence a trust arises only where there is evidence of the existence of an agreement which gives rights which the parties considered to be irrevocable. In Re Dale, a decision of 1993, the Chancery Division had to consider the structure of the contract.61 The case concerned corresponding wills made by husband and wife, together with their son, in favour of the latter and his sister in equal shares. Subsequent to the husband’s death the wife executed a new will leaving her estate to the son alone. When she died, the daughter claimed that the second will was void. In the court’s view, the doctrine of mutual wills applied despite the fact that the wife took no benefit. The execution of the will by the first testator was sufficient consideration to sustain an initial contract to make, and not thereafter revoke, mutual wills. In a more recent decision the question of the formal requirements of such a contract was considered in a case concerning land.62 The court concluded that 58 Re Heys [1914] P 192. 59 It has been suggested that the imposition of a constructive trust might not be necessary to protect the intended beneficiary. See C J Davis, “Floating Rights” 61 (2002) CLJ 423 at 427 ff. 60 Re Oldham, Hadwen v Myles [1925] Ch 75; Gray v Perpetual Trustee Co Ltd [1928] AC 391; Re Dale decd, Proctor v Dale [1994] Ch 31 at 38 per Morritt J; In re Goodchild decd [1997] 1 WLR 1216 at 1225 per Legatt LJ; Hennessay v Littlejohn Ch, 11 June 2001; Birch v Curtis [2002] EWHC 1158, [2002] Fam Law 815. 61 Re Dale (deceased), Proctor v Dale [1994] Ch 31. 62 Healey v Brown [2002] EWHC 1405.

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“the agreement embodied in mutual non-revocable wills containing a bequest of land is a contract for the disposition of land” and must therefore fulfil the requirements set by section 2 of the Law of Property (Miscellaneous Provisions) Act 1989”.63 The contract thus had to be in writing, which it was not. Taking these developments into account, it can be argued that English law has moved away from its Civilian starting point. From requiring no more than the existence of a contractual element, the courts have adopted a more rigorous approach. Today it is necessary not only to prove the existence of a contract which the parties considered to be irrevocable, but also for the contract to meet requirements which to some extent have yet to be defined. Only if there is a valid contract, satisfactorily evidenced, may a trust arise. In the light of this approach – and the fact that many problematic aspects of the doctrine have yet to be teased out64 – it is hardly surprising that lawyers often advise their clients against mutual wills.65 (3) Scotland As in the other jurisdictions already examined, in Scotland the mutual will is usually treated as two distinct wills. Since one of the fundamental characteristics of a will is the freedom to amend or alter it, each will can in principle be revoked, both during the lifetime and after the death of one of the testators. A clause declaring the will irrevocable does not bind the testator.66 A testator might, however, yield his power of revocation by inter vivos contract.67 A mutual will thus becomes irrevocable if it is contractual, that is to say, if the 63 Healey v Brown (n 62) at para 19 per David Donaldson QC. 64 There are questions which have not yet been fully explored. For instance, it is uncertain what property is subject to the trust, how far the survivor is entitled to dispose of his own property during his lifetime, and to what extent after-acquired property is subject to the trust. The same is true as to the precise nature of the trustee and the applicability of the Contracts (Rights of Third Parties) Act 1999. 65 Several authors of treatises on succession advise their readers to be careful when using this instrument. See for example J E Martin (ed), Hanbury & Martin, Modern Equity, 16th edn (2001) 325-326: “For the present, persons who wish to leave property by way of mutual wills should be advised to consider most carefully the trusts on which they wish the property to be held; what property is to be included; the position during the survivor’s lifetime; who they wish to be trustees; what administrative powers the trustees would have ... Merely to draft mutual wills and then leave the law to sort out such a host of problems is no service to a client”; R J G Ross Martyn, S Bridge and M Oldham (eds), Theobald on Wills (2001) 28: “Mutual wills may meet the needs of some testators, but they ought only to be made after careful thought about their consequences. If after such careful thought they are made, they must be carefully drafted, especially to define the property bound by the agreement.” A similar view is expressed by Parry and Clark, The Law of Succession, 15th edn by R Kerridge assisted by A H R Brierley (2002) 108. 66 Dougall’s Trs v Dougall (1789) Mor 15,949. 67 Stair 3. 8. 28: “the power of testing [may] be restricted by paction.” In this sense also Erskine, Inst 3. 9. 6; Bell, Prin § 1866; Paterson v Paterson (1893) 20 R 484.

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will contains an express or implicit agreement that each testator shall dispose of his or her property as stated in the will.68 If there is a valid contract, it must receive effect and the will becomes irrevocable unless both testators consent to revocation. The existence of such a contract is not always self-evident, and the onus of proof rests upon the person asserting its existence. Whether there is a contract depends on the interpretation of the terms of the will. Reciprocal provisions are presumed to be contractual, but not provisions in favour of third parties.69 Particularly when the testators are husband and wife, it is frequently alleged that there is a contract between them which prevents the survivor from altering the will.70 In each case, however, the contract must be found in the words of the instrument, which are often open to different interpretations, and many litigations concerning mutual wills have arisen precisely over an alleged contract not to revoke. To avoid this, testators are advised – and this is true also of England, as we have seen – to make an express contract which properly and clearly reflects their intentions. Quite apart from the difficulties of interpretation, it is unclear what kind of contract is in issue, what its requirements are, and what are the consequences of its breach. Many questions thus remain unanswered and many aspects have yet to be resolved – a situation that has led to a decline in the use of this instrument in Scotland. Hence, the Scottish Law Commission saw no compelling reason to recommend reform of the law on mutual wills.71 E. SOUTH AFRICA With the arrival of Dutch immigrants in South Africa, Roman-Dutch law was transplanted to the Cape of Good Hope, and the same rules which, a century later, would find their way into English law were thus applied to mutual wills in South Africa. The outcomes, however, were different: while the courts in England chose to anchor mutual wills in the field of the contract, the South 68 Croll’s Trustees v Alexander (1895) 22 R 677 at 681 per Lord McLaren; Hanlon’s Exr v Baird 1945 SLT 304. 69 United Free Church of Scotland v Black 1909 SC 25; Hanlon’s Exr v Baird 1945 SLT 304 at 306 per Lord Sorn. For a historical account see J McLaren, The Law of Wills and Succession, 3rd edn (1894) vol I, 421-422; J Erskine, Principles of the Law of Scotland 21st edn, by J Rankine (1911) 590, 602-603. 70 Corrance’s Trustees v Glen (1903) 5 F 777 at 780 per Lord Kyllachy. 71 Scottish Law Commission, Report on Succession (Scot Law Com No 124, 1989) para 4.84: “The problem which can be caused by mutual wills have led to a decline in the use and we understand that they are now unusual. Our preliminary view was that there was no need for any change in the law on mutual wills.”

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African courts (and the Privy Council) opted for an approach founded upon the surviving testator’s acceptance of benefits. In the first cases involving mutual wills, decided by the Supreme Court of South Africa in 1868, both theories regarding the revocation of mutual wills which had been developed by Roman-Dutch lawyers were advanced and extensively discussed.72 Some of the judges believed that the surviving spouse was bound only on acceptance of benefits under the will, while others contended that, on the first death, there was already a contract binding the surviving testator. In the event, the contract theory was rejected by the Judicial Committee of the Privy Council in what is considered to be the leading case on the subject, Denyssen v Mostert, decided in 1872.73 The question of law was whether it was open to a surviving spouse to depart from the terms of a mutual will by declining any benefit under it. While the Cape Supreme Court74 concluded that the instrument became a contract immediately on the death of the first spouse, the Privy Council decided that acceptance of benefit was a necessary requirement and that, in its absence, the second spouse was not bound by its provisions. Having considered the English law on the matter, the Privy Council decided to adopt the doctrine laid down by Hugo Grotius which, as we have seen,75 had come to prevail in the provinces of the Netherlands by the end of the seventeenth century. The court concluded that, in the event of a unilateral revocation by one testator during the lifetime of both, there was no duty to inform the other testator, and that mutual wills were in principle revocable by the survivor at any time. But the power to revoke was taken away from the surviving co-testator when the testators consolidated all or part of their property into a single mass for the purpose of a joint disposition of it, and when in addition the survivor accepted some benefit under the will of the first to die. These rules have remained substantially unchanged over time, although South African courts have developed and qualified other aspects of the law of mutual wills, such as the meaning of massing, the position of the survivor, the vesting of beneficiaries under the wills, and so on.76 Massing is generally held to occur where two or more testators consolidate the whole or portions of their respective estates into a single unit for the purpose of testamentary disposal. It is therefore necessary that the first testator to die should have 72 Brits v Brits’s Executors (1868) 1 Buch 312; Hofmeyr, Neethling’s Curator v De Wet (1868) 1 Buch 317; Oosthuysen v Oosthuysen (1868) 1 Buch 51. 73 Denyssen v Mostert [1872] 8 Moore NS 502, 17 ER 400, (1873) 3 Buch 31. 74 Secretary SA Association v Mostert (1869) 1 Buch 231. 75 See B. above 76 This was stated by Innes CJ in The Receiver of Revenue, Pretoria v Hancke 1915 AD 64 at 70.

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disposed of his own assets (or part of them) as well as of the assets (or part of them) of the surviving testator. Whether massing has occurred is a matter of construction in each case.77 If there is reasonable doubt, because the intention of the testators cannot be determined from the language used in the will, there is a presumption against massing.78 The effect of massing is to put the surviving spouse to an election. The spouse may accept the benefits under the will,79 whereupon he loses the freedom to vary or revoke his own portion of the mutual will insofar as it relates to the massed estates, or to dispose of his share in the massed estates in a manner which is at variance with the terms of the will.80 In other words, if the survivor accepts a benefit under the mutual will, he is bound to give effect to its terms. Alternatively, the surviving spouse may repudiate, in which case he retains his half-share in the joint estate and may dispose of it freely by will or otherwise, but forfeits his claim to any of the benefits left to him in the will of the first to die. As can be seen from this account, the key aspect of the revocability of mutual wills has been settled in a satisfactory manner in South Africa. This may explain why, unlike in England and Scotland, mutual wills are frequently made, especially between spouses married in community.81 F. CONCLUDING REMARKS For centuries mutual wills have attracted the attention of judges and jurists, who have grappled with the complex and challenging problem of revocability. Within this context Roman-Dutch lawyers played an important role in developing solutions which, to a certain extent, remain relevant today, even although the Netherlands is now among those countries that forbid the making of mutual wills. The Roman-Dutch solutions influenced the jurists and courts of a large part of the European continent and were finally also 77 See for example Burgers v Burgers’ Exrs 1911 CPD 936; Union Government (Minister of Finance) v Leask’s Exrs 1918 AD 447; Meyer’s Executors v Meyer’s Executors 1927 TPD 331; Ex parte Jackson NO 1941 TPD 222; Renchen v Renchen 1946 NPD 471. 78 In addition to the cases cited in note 77 above, see Estate Claassen v Estate Claassen 1913 CPD 269; Mills v Estate Van Blerk 1914 CPD 857; Estate Coaton v The Master 1915 AD 527; Vaughan’s Executrix v The Master 1919 TPD 363; De Kock v Estate De Kock 1922 CPD 110; Estate Smith v Smith 1940 CPD 625; Perry v Executors Estate Oats 1941 TPD 91; Kleyn v Estate Kleyn 1915 AD 527; D’Oyly-John v Lousada 1957 (1) SA 368 (N); Joubert v Ruddock 1968 (1) SA 95 (E). 79 Known as “adiation”. 80 For a more detailed analysis see M M Corbett, G Hofmeyr and E Kahn, The Law of Succession in South Africa, 2nd edn (2001) 436 ff. 81 They may also be executed by spouses married out of community of property or by persons not married at all.

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adopted in England. But although proceeding from much the same standpoint, Germany, England and South Africa were, in the end, to reach different conclusions. In South Africa the acceptance of benefits by the surviving testator constitutes one of the conditions for a will to become irrevocable; while in Germany, England and Scotland the surviving testator is considered to be bound by an agreement to execute mutual wills. Hence, the contract theory has become the dominant one, even though it developed in different ways over the years. As has been seen, in Germany, where mutual wills can only be made by spouses, each testator of a wechselbezügliches Testament is free to revoke during the parties’ joint lifetimes (but only by giving prior notice), while after the death of one of them the surviving testator is prevented from revoking unless he renounces what he has received.82 This solution is explained by the fact that the parties “agreed” to execute wills each of which finds its justification in the other. It is this agreement which allows a certain limitation of freedom of revocation. However, testament and Erbvertrag remain two different legal instruments. In England, the courts have developed the contract theory in a way which is gradually transforming the contractual element into a full-blown contract.83 So whereas in the beginning it was necessary merely to give evidence of mutual intention, the modern law requires the existence of a valid contract. Judges seem to go so far as to identify in mutual wills what in Germany would be classified as an Erbvertrag, and they have moved away from the original continental ideas which inspired Lord Camden in the second half of the eighteenth century. This certainly cannot be said about South Africa, where the rules developed by the Roman-Dutch lawyers have remained substantially unchanged.84 Almost no interaction between Civil and Common Law seems to have occurred in the case of mutual wills, and this seems to confirm that the law of succession in South Africa has largely preserved its Roman-Dutch character.85

82 83 84 85

See D.(1) above. See D.(2) above. See E. above. R Zimmermann, “‘Double Cross’: comparing Scots and South African law”, in R Zimmermann, D Visser and K Reid (eds), Mixed Legal Systems in Comparative Perspective: Property and Obligations in Scotland and South Africa (2004) 1 at 6.

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13 Succession Agreements in South African and Scots Law Dale Hutchison A. INTRODUCTION B. SOUTH AFRICAN LAW (1) The scope of the prohibition (2) The earlier case law: grappling with testamentary character (3) The decision in Borman (4) Freedom of testation and vesting: why these concepts are interrelated (5) The test for a pactum successorium (6) Application of this test in McAlpine (7) The dissenting judgment of Nienaber JA (8) Donations mortis causa: how do they fit into the picture? C. SCOTS LAW (1) Undertakings to leave property to another, or not to revoke a bequest (2) Promises, legacies and donations mortis causa D. CONCLUSION A. INTRODUCTION A succession agreement (or pactum successorium) is an agreement that seeks to regulate the succession to a person’s estate (or an asset forming part of that person’s estate) on his or her death.1 As such, it is an institution that occupies “a somewhat shadowy position between contract and testation”.2 The agreement may seek to regulate succession either directly or indirectly. Almost all of the classic examples of pacta successoria fall into the latter category. Here the agreement seeks to affect the process of succession rather than to effect it.3 It does so by purporting to regulate the contents of a will. 1 See Borman en De Vos NNO en ‘n Ander v Potgietersrusse Tabakkorporasie Bpk en ‘n Ander 1976 (3) SA 488 (A) at 501A-E per Rabie JA, and authorities there cited; McAlpine v McAlpine NO and Another 1997 (1) SA 736 (A) at 747A-E per Corbett CJ. On the history of this institution, see C P Joubert, “Pactum successorium” (1961) 24 THRHR 18, 106, 177, 250; (1962) 25 THRHR 46, 93. 2 McAlpine v McAlpine NO and Another 1997 (1) SA 736 (A) at 751C per Corbett CJ. 3 Cf McAlpine at 754 per Nienaber JA.

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For example, the parties to the agreement might agree to appoint each other reciprocally as heir or legatee under their respective wills; or one party may promise to bequeath a particular asset to another by way of legacy; or a party may promise not to revoke a legacy, or not to make a will at all. In its direct form, the pactum successorium is more ambitious: it bypasses the will altogether and seeks itself to effect the succession by contract. An example of such an agreement would be where two parties directly and reciprocally appoint each other as heir in terms of their agreement.4 More generally, it might perhaps be said that any agreement purporting to effect a post-mortem disposition of an asset falls into this category.5 The question is whether there is anything objectionable about these agreements. The Romans certainly thought so. In their view, a pactum successorium was not only distasteful, smacking of the carrion crow, but also immoral and dangerous in that it might tempt a party to hasten the demise of another who had bound himself in this manner.6 This concern strikes one today as rather fanciful. A more serious concern was that it was not in the public interest for parties to limit their freedom of testation by means of contract. Given the importance attached by many legal systems to testamentary freedom, this concern undoubtedly retains a degree of validity.7 Whether it affords a sufficiently good reason for striking down the agreement in question would depend upon the relative importance of freedom of testation when compared with other values, in particular with freedom of contract. Even amongst systems based on Roman law there is today a difference of opinion in this regard, as will become apparent from the discussion below. Another possible objection to upholding these agreements is that they tend to undermine or facilitate an evasion of the law relating to testamentary succession.8 Why bother to comply with the formal requirements for a will if one can simply dispose of one’s assets by informal agreement? Again this is a valid concern, but it can be met by requiring a pactum successorium to comply with the same or similar formalities as are required for a will. Indeed, many systems do just that in regard to donations mortis causa.9

4 Cf Voet 2.14.16; McAlpine at 748-749 per Corbett CJ. 5 See the discussion at B.(5) below. 6 Borman en De Vos NNO en ‘n Ander v Potgietersrusse Tabakkorporasie Bpk en ‘n Ander 1976 (3) SA 488 (A) at 501 per Rabie JA. 7 Borman at 501 per Rabie JA; McAlpine at 747E-F per Corbett CJ. 8 See the references in the previous footnote. 9 This is certainly the case in South African law: see B Wunsh, “Donations”, in The Law of South Africa vol 8 part 1 (First Reissue, 1995) para 285; but apparently not in Scottish law: cf Macdonald, Succession 53.

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B. SOUTH AFRICAN LAW In South Africa the courts have, without too much critical consideration of the underlying policy issues, followed Roman law in holding that succession agreements are invalid and unenforceable.10 The main reason given for so doing is that such agreements are contrary to public policy in that they fetter freedom of testation. A secondary reason is to prevent the evasion of testamentary formalities.11 By way of exception to this general principle, however, a succession agreement embodied in an antenuptial contract is valid, as is a donation mortis causa executed in compliance with the formalities required for a valid will.12 (1) The scope of the prohibition The prohibition applies not only to the classic form of pactum successorium, where the agreement seeks to regulate the contents of a will, but extends also to agreements that purport directly to effect a disposition of an asset on or after the death of a contracting party. That was made clear by the Appellate Division in what are now the two leading cases on the subject: Borman en De Vos NNO v Potgietersrusse Tabakkorporasie Bpk, and McAlpine v McAlpine NO.13 Whatever the merits of its outright prohibition (which in at least some cases is open to question), the classic pactum successorium causes little difficulty in practice because it is easy to recognise as such. The same cannot be said of contracts which, while making no reference to a will, nevertheless purport to bind a party to a post-mortem disposition of property. Once the concept of pactum successorium is extended to encompass these agreements, problems begin to arise. The reason is that many ordinary commercial contracts which clearly serve useful purposes then potentially fall within the scope of the prohibition and accordingly run the risk of invalidity. (2) The earlier case law: grappling with testamentary character In a series of provincial cases, the South African courts were forced to grapple with this problem. What were they to make of an option to purchase property exercisable only after the death of the offeror?14 Or of an agreement between 10 11 12 13 14

The leading cases are those mentioned in n 1 above. See n 7 above. Corbett et al, Succession 36-37. See n 1 above. Costain and Partners v Godden NO 1960 (4) SA 456 (SR).

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co-owners entitling the survivor of them to the sole use and enjoyment of the entire property for life?15 Or of a partnership agreement in terms of which the surviving partner was given the right to continue the business, or to continue occupying the partnership premises, after the death of the firstdying partner?16 Or of a contract in terms of which children agreed to look after their elderly parents for the remainder of their lives, in consideration for which they were to be given property after the death of the parents?17 In each of these cases, the validity of the agreement in question was upheld. Quite understandably, the courts were reluctant to strike down the agreements merely because they had some testamentary effect; or at any rate had legal consequences that took effect after the death of one of the contracting parties. But how were they to justify their decisions? What they did was to seize upon some or other characteristic of a will, note its absence in the case before them, and on that basis declare the agreement to be sufficiently lacking in testamentary character to escape the prohibition on pacta successoria.18 Now it is of course true that while a contract, being a bilateral juristic act, can never in itself constitute a will, it can display at least some of the characteristics of a will. These characteristics include the following: animus testandi (the intention to make a will, or at any rate to effect a gratuitous post-mortem disposition of an asset); no vesting or divesting of rights in the asset until after the death of the maker; and unilateral revocability of the disposition by the maker at any time before his or her death. One way of approaching the problem of how to identify a pactum successorium might thus be to determine which of these characteristics an agreement should display in order to give it sufficient testamentary character to fall within the scope of the prohibition.19 This was the approach implicitly adopted by the courts in the cases just referred to. However, it must be said that in groping towards a solution to the problem in these cases, the courts frequently showed rather muddled thinking, with the result that the case law on the topic was anything but clear. Thus, for example, in some cases the courts made revocability the dominant (or at least an important) criterion for identifying a pactum successorium, overlooking the fact that no agreement which is unilaterally revocable by

Varkevisser v Estate Varkevisser 1959 (4) SA 196 (SR). D’Angelo v Bona 1976 (1) SA 463 (O); Erasmus v Havenga 1979 (3) SA 1253 (T). Keeve v Keeve NO 1952 (1) SA 619 (O). For a discussion of these cases, see D Hutchison, “Isolating the pactum successorium” (1983) 100 SALJ 221 at 225-231. 19 Hutchison (n 18) at 223-225.

15 16 17 18

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a party can be said to limit that party’s freedom of testation.20 On the other hand, the courts were spot on target when they identified the time of devolution of the right to the benefit in question as being a crucial determinant of the issue; as will be demonstrated below, it is only when the right to the benefit vests in the beneficiary on or after the death of the promisor that the agreement can possibly be considered a pactum successorium. Indeed, this “vesting test” runs like a golden thread throughout the South African case law on the topic.21 (3) The decision in Borman Given the fact that in virtually all of these cases the agreements in question were upheld by the courts, it might have been tempting at the time to conclude that only the classic form of pactum successorium (an agreement that indirectly affects a succession by regulating the contents of a will) is prohibited by South African law. Any such hopes were shattered by the decision of the Appeal Court in the Borman case.22 There the deceased had during his lifetime been a member of the respondent agricultural co-operative company. By agreement between the company and its members, a levy equivalent to 4% of the gross sales of tobacco was credited annually to accounts in the name of the individual members, but administered by the company. In certain circumstances a member could withdraw the sum standing to his credit in his account. Any amount still in the account at the time of his death would not form part of his estate but would be paid by the company to his widow, or to the beneficiary in his estate. The deceased had left a valid will disposing of his interest in the account to his son. The company on the other hand wished to pay the sum to the deceased’s widow, the primary beneficiary in terms of the agreement. In these circumstances the executor of the deceased’s estate applied for an order declaring that the amount should be paid into the estate, arguing that 20 Costain and Partners v Godden 1960 (4) SA 456 (SR) at 459-460 per Murray CJ; D’Angelo v Bona 1976 (1) SA 463 (O) at 467-468 per De Wet J; Erasmus v Havenga 1979 (3) SA 1253 (T) at 1258-1259 per Myburgh J . 21 Keeve v Keeve NO 1952 (1) SA 619 (O) at 623-624 per Horwitz J; Varkevisser v Estate Varkevisser and Another 1959 (4) SA 196 (SR) at 199 per Quènet J; Erasmus v Havenga 1979 (3) SA 1253 (T) at 1259 per Myburgh J; Ex parte Calderwood NO: In re Estate Wixley 1981 (3) SA 727 (Z) at 735 per Gubbay J; Jubelius v Griesel NO en Andere 1988 (2) SA 610 (C) at 623 per Fagan J; Borman en De Vos NNO en ‘n Ander v Potgietersrusse Tabakkorporasie Bpk en ‘n Ander 1976 (3) SA 488 (A) at 505 per Rabie JA; McAlpine v McAlpine NO and Another 1997 (1) SA 736 (A) at 750-751 per Corbett CJ, but cf 756-757 per Nienaber JA (diss). 22 Borman en De Vos NNO en ‘n Ander v Potgietersrusse Tabakkorporasie Bpk en ‘n Ander 1976 (3) SA 488 (A)

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the agreement between the member and the company amounted to an invalid pactum successorium. The argument was rejected by the court of first instance but prevailed in the appeal. The Appellate Division was unanimously of the opinion that the agreement deprived the deceased member of his freedom of testation in regard to his interest in the account and for that reason had to be struck down as an invalid pactum successorium. The asset in question was the member’s claim against the company in respect of the amount standing to his credit in the account. That claim remained an asset in his estate until the time of his death;23 there was no inter vivos vesting in any other person as in many of the earlier cases.24 The effect of the agreement was that the member should not be permitted to dispose of that asset by will, at any rate where he left a widow; and his freedom of testation was accordingly curtailed.25 The decision in Borman was in some respects an unfortunate one,26 but it undoubtedly represents the current law. The challenge is to make sense of the law in light of the decision, and to understand its implications. Fortunately, that task has been made considerably easier by the subsequent case of McAlpine,27 which will be discussed below. (4) Freedom of testation and vesting: why these concepts are interrelated In Borman Rabie JA placed all the emphasis on curtailment of freedom of testation, and said relatively little about vesting; in McAlpine, on the other hand, Corbett CJ made vesting “the litmus test for identifying a pactum successorium”,28 while accepting that curtailment of freedom of testation is the main reason for visiting such agreements with invalidity.29 In order to make sense of this, we need a clear understanding of what exactly is meant by these two concepts, and how they relate to one another. We need to appreciate why it is that only an agreement that vests rights on or after one’s death can limit one’s freedom of testation. Freedom of testation is a concept that is not free from ambiguity. In its wider sense it means that “a person may dispose of his or her property by will as he or she pleases”.30 If the concept is given this meaning, then even 23 24 25 26 27 28 29 30

Borman at 506C-D. Borman at 505D-E. Borman at 502C-D. McAlpine v McAlpine NO and Another 1997 (1) SA 736 (A) at 754F per Nienaber JA. McAlpine v McAlpine NO and Another 1997 (1) SA 736 (A). McAlpine at 751D-E per Corbett CJ. McAlpine at 747E per Corbett CJ. E L G Tyler, Family Provision (1971) 1.

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an ordinary inter vivos disposition curtails testamentary freedom, since a will can operate only in relation to such property as the testator holds at the date of his or her death. Having sold and delivered to you my watch while I am still alive, I cannot effectively dispose of the watch by my last will. Of course, nobody would contend that such an agreement of sale constitutes a pactum successorium. In the present context, therefore, freedom of testation must be understood in a somewhat narrower sense, denoting the freedom or power to dispose by will of any asset remaining in one’s estate at the time of one’s death.31 That line of reasoning leads inevitably to the distinction between dispositions inter vivos and dispositions mortis causa. No disposition of an asset that takes effect during one’s lifetime can be a pactum successorium; and conversely, an agreement can only be a pactum successorium if it purports to bind one to a disposition of an asset on or after one’s death. That in turn leads to the question: when then does a disposition take effect? And it is here that the concept of vesting comes into play, for a disposition takes effect in law not when the asset in question is delivered to the recipient, but when the right to the asset divests from the estate of the disposer/promisor and vests in the estate of the recipient/promisee. In McAlpine Corbett CJ said the following in regard to the so-called “vesting test” as a determinant of whether or not an agreement constitutes a pactum successorium:32 This test is applied by asking in a particular case whether the promise disposing of an asset in favour of another (whether by way of donation or other form of contract) causes the right thereto to vest in the promisee only upon or after the death of the promissor (which points to a pactum successorium); or whether vesting takes place prior to the death of the promissor, for instance, at the date of the transaction giving rise to the promise (in which case it cannot be a pactum successorium).

As the learned judge went on to point out,33 the application of this test involves the distinction drawn in our jurisprudence between vested and contingent rights. In the testamentary context, the term “vested” is used to 31 This meaning of testamentary freedom is implicit in Borman at 505B-C, 507pr-A per Rabie JA, and in McAlpine at 752-753 per Corbett CJ. 32 At 750D. This formulation of the test presupposes a disposition made directly from the promisor to the promissee. Where the disposition is made through an intermediary (as, for example, in the case of life insurance, pension agreements and inter vivos trusts) the time of vesting in the ultimate beneficiary does not necessarily coincide with the time of divesting from the estate of the promisor, and “the test is not whether the benefit vests in the ultimate beneficiary at the death of the donor, but whether the donor or promisor divested himself of the asset during his lifetime” (Heath and Another v Heath, TPD case no 11087/01, per Vorster AJ). See too Hutchison (n 18) at 234. 33 McAlpine at 751E-I.

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indicate “what is fixed and certain as distinct from that which is conditional or contingent”.34 Thus a vested right is one the title of which is complete and unconditional; all the investitive facts necessary for the creation of the right have occurred. By contrast, a contingent right is merely prospective; its title is incomplete and uncertain; while one or more of the investitive facts have already happened, another or others have not yet happened and may never happen.35 Thus if A promises B a benefit, but makes B’s right to the benefit conditional upon the happening of a future, uncertain event, then until the happening of the event B has merely a contingent right to the benefit; the right vests only when, or if, the stipulated event occurs, that is, on the fulfilment of the suspensive condition. In the meantime, however, B’s contingent right enjoys a measure of legal recognition and protection, and is thus distinguishable from a mere hope or spes.36 The time of vesting of rights under a contract depends upon the intentions of the parties, as expressed in the terms of the contract.37 Usually the rights will vest immediately upon conclusion of the contract, but where words of futurity are used the parties might have intended to postpone vesting until a future date. Thus where A promises B some benefit or asset on A’s death (for example, “you can have my gold ring when I die”), there are two possibilities: either A intended that B should acquire an immediately vested right to claim the ring after B’s death (in which case only enjoyment of the benefit is postponed, not vesting of the right to the benefit; and the disposition is one inter vivos); or A intended to postpone both vesting and enjoyment (as would be the case, for example, if A’s intention was that B would acquire the right to the ring only if B survived A – something that was not bound to occur; here the disposition would be one mortis causa). Where the date for enjoyment (dies venit) does not coincide with the date of vesting (dies cedit), it is the date of vesting which determines whether the disposition is effected inter vivos or mortis causa.38 Use of this “vesting” test for identifying a pactum successorium has been criticised as over-subtle and complex,39 but in fact, as I hope to have demonstrated, if a system adopts the rule that any agreement that limits 34 Corbett et al, Succession 146-147. 35 D V Cowen, “Vested and contingent rights” (1949) 66 SALJ 404 at 406-408. 36 Cowen (n 35) at 408; McAlpine at 757D per Nienaber JA; First National Bank of SA Ltd v Lynn NO and Others 1996 (2) SA 339 (A), especially at 355G per Olivier JA (contingent right can be transferred by cession). 37 Borman at 505D-E per Rabie JA; McAlpine at 752G-H per Corbett CJ. 38 Voet 39.5.4 (and cf 2.14.16); J Gauntlett, “Distinguishing donations inter vivos and mortis causa” (1977) 40 THRHR 45 at 50-51; Joubert (1962) (n 1) at 101; Hutchison (n 18) at 228. 39 Joubert (1962) (n 1) at 101; McAlpine at 757E per Nienaber JA.

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freedom of testation is invalid, it will by force of logic be driven to distinguish between inter vivos and mortis causa dispositions; and that distinction in turn can only satisfactorily be drawn on the basis of the time of vesting of the right to the benefit. As we shall see below, any attempt to base the distinction on subjective factors like animus testandi40 is bound to prove unsatisfactory or unworkable in practice. (5) The test for a pactum successorium Provision for a post-mortem vesting of the right to the benefit in question is thus, in terms of the current South African law, a necessary condition that must be met before an agreement can be classed as a prohibited pactum successorium. It is not in itself a sufficient condition, however, because even where the vesting occurs on or after the death of the promisor, the agreement will not limit freedom of testation if the promisor may freely revoke the agreement during his or her lifetime. Irrevocability of the promise or agreement is thus a further requirement or condition that must be met.41 Accordingly, the whole matter may be summed up thus. A pactum successorium is an agreement that purports to limit a party’s freedom of testation by irrevocably binding that party to a post-mortem disposition of an asset in his or her estate.42 The disposition will be one post-mortem if the right to claim the asset vests in the promisee only on or after the death of the promisor. (6) Application of this test in McAlpine Ian and Gilroy McAlpine were brothers who each held 50% of the issued share capital in a private company. The company’s sole asset was a piece of land which the brothers had by agreement divided into two portions. Each brother’s 50% shareholding entitled him to the “exclusive use for his own profit” of one of these portions. Neither could sell his shares without first offering them to the other party. Subsequently the brothers added a clause to their agreement stipulating that, since the company had been formed for their exclusive benefit, in the event of either party’s death “the other party will get 100% of the shares in the company … in other words, the deceased parties shareholding will go to the one remaining alive”. When Ian unexpectedly died six years later, Gilroy accordingly claimed transfer to himself of Ian’s shareholding in the company. Ian’s widow, in her 40 As proposed by Nienaber JA in McAlpine at 756-757. 41 Hutchison (n 18) at 231; McAlpine at 756E per Nienaber JA; Ex parte Calderwood NO: In re Estate Wixley 1981 (3) SA 727 (Z) at 735D-E. 42 Hutchison (n 18) at 230; Van Aardt v Van Aardt 2007 (1) SA 53 (E) at 55 per Jones J.

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capacity as executrix of the estate, refused to admit the claim, contending that the relevant portions of the agreement in question amounted to a pactum successorium and were on that ground invalid. The court of first instance upheld this defence and so too did a majority in the Appellate Division.43 Speaking for the majority, Corbett CJ expressly approved the vesting test as “an eminently appropriate one for determining whether or not a contract amounts to a pactum successorium”.44 The disputed provisions contained reciprocal but alternative dispositions in favour of each brother, depending on which one died first. Since Ian had died first, the question was whether the disposition in favour of Gilroy took effect immediately upon conclusion of the contract or only on Ian’s death. That depended upon the time when Gilroy acquired a vested right to the shares, which in turn depended upon the intention of the parties to the agreement. Counsel for Gilroy, accepting that the vesting test was the appropriate one to be applied, argued that the rights conferred by the agreement vested inter vivos, as soon as the contract was concluded. There was no contingency to postpone vesting, he argued, because death was inevitable; unless they died in a common calamity, one of the brothers had to survive the other. That argument missed the point, said Corbett CJ; the disposition in favour of Gilroy was conditional upon his surviving Ian, and that was clearly an uncertain future event since he might predecease Ian, in which case the disposition would fall away. The suspensive condition of survivorship postponed vesting in Gilroy until the time of Ian’s death, and the agreement was accordingly an invalid pactum successorium.45 Whether this was a satisfactory result, said the Chief Justice, was an issue upon which lawyers might hold different views. Where the pactum formed part of a larger commercial transaction between the parties (as here), a case might be made out for the relaxation of the rule invalidating pacta successoria. That was a matter that might engage the attention of those responsible for law reform.46 (7) The dissenting judgment of Nienaber JA Nienaber JA was not having any of this. The present agreement was certainly not a pactum successorium in its classic form, and that concept should not be extended so as to invalidate ordinary commercial agreements which served 43 44 45 46

McAlpine v McAlpine NO and Another 1997 (1) SA 736 (A). McAlpine at 752D-E. At 752-753. At 753H-I.

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a useful purpose. As was clear from the case law, parties concerned in close personal commercial relationships (such as partnership and co-ownership) frequently considered it to be in their interest to maintain the status quo even after the death of one of the parties to the relationship, and accordingly made agreements that were designed to regulate, with immediate legal effect, their future affairs. There was a clear need to recognise agreements of this sort, and courts should be astute to support rather than to frustrate the parties in their intention.47 How then to achieve the desired result? By restricting the pactum successorium to its classic form, and by not widening it so as to embrace any agreement binding a party to a post-mortem disposition of property. That required a restrictive reading of the “unfortunate” decision in Borman and to a large extent the jettisoning of the objective vesting test in favour of a subjective test based on animus testandi.48 In determining whether or not an agreement amounts to a pactum successorium, said the learned judge, one should not be guided predominantly by questions such as whether the right flowing from the agreement is conditional or not and, if so, whether the condition is suspensive or resolutive. “Any rule of law which is predicated on such subtleties must be suspect.”49 Instead, one should examine closely the intention of the parties at the time of contracting, taking account of all permissible material. Was it their intention to regulate the process of succession on death? Or was it something else? “There is, in my view, a difference between the passing of property and its succession. The difference lies in the intention of the promisor, as expressed in the agreement.”50 This test might not always be an easy one to apply, said Nienaber JA, but the courts frequently have to grapple with such difficulties when interpreting contracts. And in cases of doubt the tendency should always be to uphold rather than to strike down an agreement. One can readily sympathise with these sentiments. Nienaber JA was clearly trying to preserve some leeway for the courts to avoid striking down quite innocuous agreements merely on the ground that they infringe the over-glorified principle of freedom of testation. His proposed test would certainly afford the flexibility necessary for that purpose, but only (and this is said with the greatest respect) because it is a test without any hard substance. What, after all, is animus testandi in this context but an intention to effect a post47 48 49 50

At 758C-D. At 756-757. At 757E. At 755I.

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mortem disposition of property; and what real difference is there between an intention to effect a succession and an intention to pass property on death? The problem with the present law surely lies not with the perfectly logical test of vesting, but with the premiss from which it is derived, namely, that any agreement that limits freedom of testation, no matter how tangentially, is on that ground alone sufficiently objectionable to be declared invalid. (8) Donations mortis causa: how do they fit into the picture? Because they were treated separately, and differently, by the old authorities, there was until recently considerable uncertainty about the relationship between pacta successoria, on the one hand, and donations mortis causa on the other.51 This uncertainty has now been dispelled by the majority decision in McAlpine. A donation mortis causa is simply a species of pactum successorium,52 identifiable by the very fact that it is a donation (i.e., a gift made from “sheer liberality” or “disinterested benevolence”) rather than a promise for which consideration is given. It is a pactum successorium of the non-classic type in that it purports to effect a post-mortem disposition directly, rather than through influencing the contents of a will. The reason for the benevolent treatment of the donation mortis causa is that it lacks the “objectionable” features of an ordinary pactum successorium: being unilaterally revocable by the donor, it cannot limit freedom of testation; and since it must be executed in compliance with testamentary formalities, it poses no threat to the law of testate succession. Note that revocability and the insistence upon compliance with formalities are consequences attached by law once the donation is identified as one mortis causa; they are not in themselves identifying characteristics of a donation mortis causa.53 This is a significant point because it raises the question why the same approach could not be adopted in regard to other pacta successoria. In other words, if an agreement has a testamentary character in that it purports to effect a postmortem disposition of an asset, why could it not be saved from invalidity by deeming it to be revocable by subsequent will or testamentary writing, and by requiring some formality of execution, if that be considered necessary? Such an approach might have saved the agreement in the McAlpine case, while preserving the brothers’ freedom of testation: Ian could validly have 51 See, for example, Joubert (1962) (n 1) at 102-103; R C Williams, “Pacta successoria” (1969) 2 Responsa Meridiana 45. 52 McAlpine v McAlpine NO and Another 1997 (1) SA 736 (A) at 750B per Corbett CJ. 53 Meyer v Rudolph’s Exrs 1918 AD 70 at 83 per Solomon JA; Gauntlett (n 38) at 48; Hutchison (n 18) at 232.

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revoked the disputed contractual provision during his lifetime, but since he did not, the court would on this approach have been able to give effect to the agreement. Ideally, the revocation here should be express or by necessary implication from the terms of the subsequent will; as with the revocation of succession clauses in ante-nuptial contracts, a general expression in a will, such as “we hereby revoke all prior wills, codicils and testamentary acts”, should not suffice.54 Since a donation mortis causa is simply a species of pactum successorium, logically the distinction between it and a donation inter vivos should likewise depend upon whether the right to the gift vests in the donee during the lifetime of the donor, or only on or after the latter’s death. This has now been accepted by the Appellate Division in McAlpine,55 despite earlier indications that the test for a donation was subjective: whether contemplation of death, either generally or in view of some imminent peril, was the “moving cause” of the gift.56 C. SCOTS LAW In Scotland the position could hardly be more different from that which prevails in South Africa. There the old Roman prohibition on pacta successoria has been rejected in favour of an approach that generally permits persons to regulate the succession to their estates after death by means of contract. This liberality embraces not only agreements (or unilateral promises)57 directly disposing of property on death, but also “indirect” succession agreements: one may validly incur a binding obligation to leave property to another by will, as well as an obligation not to revoke a will or legacy.58 Consequently, there is no need in Scots law, as there is in South African law, for fine distinctions to be drawn between pacta successoria, on the one hand, and agreements which, though they may have some testamentary effect, are none the less enforceable on the grounds that they do not limit 54 See Ladies’ Christian Home and Others v SA Association 1915 CPD 467 at 472 per Kotzé J and authorities there cited; H R Hahlo, The South African Law of Husband and Wife, 5th edn (1985) 280. 55 McAlpine at 750C-E per Corbett CJ. 56 Meyer v Rudolph’s Exrs 1918 AD 70 at 83 per Solmon JA; Ex parte Steyl 1951 (1) SA 275 (O) at 277 per De Beers JP; cf Wunsh, Donations (n 9) para 286; Gauntlett (n 38) at 51. 57 Unlike the position in South Africa, in Scots law a unilateral promise is binding without the need for acceptance: see W W McBryde, The Law of Contract in Scotland 2nd edn (2001) 22; cf S van der Merwe, L F van Huyssteen, M F B Reinecke and G F Lubbe, Contract: General Principles, 2nd edn (2003) 9. 58 See generally Macdonald, Succession 56-57; McBryde, Contract (n 57) 21-22.

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freedom of testation. That is not to say, however, that Scots law has managed to steer clear of all the subtleties inherent in the distinction between dispositions inter vivos and dispositions mortis causa. Far from it, as we shall see. For so long as a system of law continues to treat contractual arrangements differently from testamentary ones, as virtually all systems do, there will be a need for that distinction. In Scots law the need manifests itself in a line of cases that grapple with the problem of determining whether a declaration of intent, contained in a letter, to confer a benefit on another after the death of the writer, is a “promise” or a “legacy”; that is to say, a contractual undertaking binding on the promisor and his or her estate, or a testamentary provision that may (generally) be revoked at will. And as might be expected, the issue of vesting looms large in this line of cases, even though it is seldom given the recognition that it deserves. Lurking in the shadows, too, is the concept of donation mortis causa, which seems in Scots law to occupy a somewhat uncertain position between a promise and a legacy.59 And then, finally, as in South African law, there are many other inter vivos contractual arrangements that are designed to take effect on death, and may accordingly be considered “will substitutes”.60 These include marriage contracts, life assurance agreements, inter vivos trusts, and special destinations. The latter are found in documents of title that regulate not only the ownership of property during the maker’s lifetime but also its inheritance on his or her death.61 As such they are akin to the South African fideicommissum inter vivos.62 (1) Undertakings to leave property to another, or not to revoke a bequest Where A promises to leave property to B, and subsequently attempts to renege on the promise, two situations may be distinguished. The first is where A neglects during his lifetime to make the will or legacy in B’s favour at all; what, if anything, may B do to ensure that effect is given to the promise, seeing that A is now dead? The second is where A does carry out the promise, by executing a will or inserting a legacy in B’s favour, but thereafter changes his mind and purports to revoke the bequest; may he do so? 59 See Macdonald, Succession 53; cf Miller v Milne’s Trs (1859) 21 D 377 at 395 per Lord Ivory: “As to the third view …, that this is neither an obligation nor a legacy, but a donatio mortis causa, a right somewhat higher than a legacy, I am not sure if I rightly understand what that means, or that the law of Scotland recognises it at all.” 60 See the full discussion by Macdonald, Succession ch 5. 61 Macdonald, Succession 46-52; G L Gretton, “Destinations” (1989) 34 JLSS 299. 62 Corbett et al, Succession 260.

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An example of the first situation seems to have occurred in the early case of Houston v Houston.63 The report of that case is as follows: In a pursuit for payment of 500 merks, against the executor dative to the maker of a bond decerned and confirmed, whereby the maker was obliged to leave to the pursuer 500 merks, to be paid by his executors after his decease; it was found, that the bond of this tenor was but as a legacy, and so that it behoved only to affect the defunct’s part of the goods confirmed, if it extended to that sum, and was not respected as a bond to make up a full debt, which would affect the whole goods of the testament.

Stair’s interpretation of the case was that “[a]n obligement to leave a legacy was found valid, and to stand as an irrevocable legacy, yet only to be taken out of the defunct’s part of his free goods”;64 and Erskine supported this interpretation.65 One of Erskine’s later editors, Lord Ivory, doubted whether the law as so stated was warranted by the facts of the case, and questioned whether the court had actually held the writing to be truly irrevocable, suggesting instead that the true effect of the decision was that a written undertaking of that nature could not be revoked by an oral will.66 Be that as it may, both Stair and Erskine seemed to have little difficulty in accepting as a matter of principle that a person might undertake a binding obligation by contract to leave property to another on death.67 And the same proposition is accepted and restated in modern times by Macdonald,68 with this qualification: in terms of the Requirements of Writing (Scotland) Act 1995, the undertaking must be in writing if it is unilateral or if it is in a bilateral contract concerning land.69 As regards the second situation, the law seems quite clear that a contractual undertaking not to revoke a legacy is binding. Stair states unequivocally that, since a will is ambulatory, a legacy may be freely revoked “by posterior or derogatory deeds, unless the defunct be obliged by contract inter vivos not to alter the same”.70 Bankton is to the same effect:71 Legacies are still revocable unless the testator become bound to leave a particular legacy; in that case it is due in virtue of the obligation, and which cannot be effectually revoked, more than an obligation to pay a sum at one’s death; for such pactions were void with the Romans, yet we sanction them. 63 64 65 66 67 68 69 70 71

(1631) Mor 8,049. Stair 3.8.28. Erskine, Inst 3.9.6. J Erskine, An Institute of the Law of Scotland, 6th edn, by J Ivory (1828) 876 n 575, referred to and discussed by Lord Neaves in Miller v Milne’s Trustee (1859) 21 D 377 at 390. Cf the opinion of the Lord Ordinary (Kincairney) in Paterson v Paterson (1893) 20 R 484 at 486. Macdonald, Succession 56. Requirements of Writing (Scotland) Act 1995 ss 1(2)(a). Stair 3.8.33. Bankton, Inst 3.8.53; see too Ersk, Inst 3.9.6.

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The correctness of this view was upheld in what appears to be the only reported case in point, Paterson v Paterson.72 In 1889 a mother and one of her sons concluded a written agreement in terms of which she undertook to execute an irrevocable will leaving all of her property to the son, in consideration of the fact that he had advanced to her and her late husband sums amounting to £800. He in turn agreed to pay up a bond for £150 over her property, to pay the taxes and fire insurance, and to allow her to receive the full rents accruing in respect of the property. Both parties honoured their promises, the mother executing a settlement that very day which was in express terms declared to be irrevocable. Shortly before her death two years later, however, she changed her mind and executed a new will, revoking the earlier one and leaving her property in trust to all three of her sons. The disappointed son sued for the setting aside of the second will on the grounds that it was made in contravention of the agreement with himself, and of the prior irrevocable will of 1889. The court of first instance held that the second will was invalid, not because the first declared itself to be irrevocable, but because revocation was barred by the binding agreement. “The authorities appear to establish that an inter vivos agreement to make a testament or grant a legacy will bar revocation of a will or legacy made in implement of it.”73 The decision was upheld on appeal despite a strenuous argument by counsel for the defendants that “there was a strong presumption against supposing that a person had surrendered his entire testamentary freedom”.74 Paterson’s case vividly demonstrates the gulf that exists between South African and Scots law on the relative importance of freedom of contract and freedom of testation. (2) Promises, legacies and donations mortis causa

As indicated above, the Scottish courts have frequently been called upon to decide whether a written declaration of intention to confer a benefit on another after the death of the writer is an ordinary contractual promise, a legacy or a hybrid of these two in the form of a donation mortis causa. The classification is important because of the consequences that flow from placing the declaration into one or other category.75 If the declaration amounts to a promise, then like any other legitimate contractual undertaking it creates an immediate debt binding on the writer and enforceable against 72 73 74 75

(1893) 20 R 484. (1893) 20 R 484 at 487 per Lord Kincairney. At 487. See e.g. McBryde, Contract (n 57) 21.

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her estate. Generally, the right to the benefit vests inter vivos even if enjoyment of the benefit is postponed until after the writer’s death, and as such it would usually be transmissible to the heirs of the recipient in the event of his predeceasing the writer. If the declaration were to have testamentary effect as a legacy, however, it would not be binding on the writer but would be freely revocable, unless she had bound herself by contract not to revoke it, as explained earlier. Being revocable, the declaration would not vest rights in the recipient inter vivos, but would take effect only on the death of the writer, and then only, as a general rule, if the recipient were to survive the writer. If the writer were actually to transfer or deliver the property in question to the recipient during her lifetime, the question would be whether this amounted to the execution of an inter vivos promise (probably a lifetime gift), or to a donation mortis causa. The latter has been authoritatively defined as:76 a conveyance of an immoveable or incorporeal right, or a transference of moveables or money by delivery, so that the property is immediately transferred to the grantee, upon the condition that he shall hold for the granter so long as he lives, subject to his power of revocation, and, failing such revocation, then for the grantee on the death of the grantor … [I]f the grantee predecease the granter the property reverts to the granter, and the qualified right of property which was vested in the grantee is extinguished by his predecease.

Thus the donation mortis causa shares characteristics of both a lifetime gift and a legacy. Like the former, it takes immediate effect, although there is no absolute vesting inter vivos: what vests is merely a “qualified right of property” (technically, this would seem to be a right that is presently vested but subject to divesting on the fulfilment of either of two resolutive conditions: revocation by the donor, or predecease of the donee). Like a legacy, on the other hand, and unlike a lifetime gift or binding promise, the disposition is revocable during the granter’s lifetime and only becomes fully effective if the recipient survives the donor. As always with questions of vesting, the intention of the donor is highly relevant to the question whether the donation is one inter vivos or mortis causa.77 The early cases show a marked tendency on the part of the Scottish courts to classify written declarations of intent to confer post-mortem benefits as

76 Morris v Riddick (1867) 5 M 1036 at 1041 per Lord President Inglis. See generally W G, “Donations mortis causa” 1951 SLT (News) 53; D G Antonio, “Mortis causa or inter vivos donation?” 1954 SLT (News) 121. 77 Macdonald, Succession 53-54.

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binding promises, rather than legacies or donations mortis causa.78 In a case decided in 185979 Lord Curriehill referred to the “abundance of authority” establishing the validity of simple unilateral grants in the form either of direct conveyances of what the granters might leave at death, or of obligations imposed – not on themselves, but only on their representatives – to pay money or deliver effects to the grantees. Such grants, when the documents containing them are unconditionally delivered to the grantees as their own proper evidents, confer on them rights which vest at once in them, and are irrevocable by the granters, although the latter retain the unrestricted enjoyment and disposal of their estates and effects during their lifetime.

One such case is that of Thomsons v Creditors of Alice Thin,80 decided in 1675, where a man delivered to his nieces a bond payable after the death of himself and his wife, and then subsequently executed a will leaving all his property to his wife. The bond was found to be “‘not revocable by him, and was neither a legacy nor donatio mortis causa’, although he retained the power of disposal of all the moveables sine dolo”.81 Another was Duguid v Caddell’s Trs.82 There a woman had delivered a letter to her relative, a captain in the Aberdeenshire militia, binding her heirs, executors and successors to pay to him an annuity of £200 after her death, “this sum to be considered as a burden upon my estate, irrevocably settled during your life”. Her subsequent attempt to revoke this promise was held to be ineffectual, with Lord Cringletie saying: “It appears wonderful to me that people ever should have doubted that an obligation on a party’s heirs to perform something after his death was good.”83 A more recent case falling into the same category is Cairney v Macgregor’s Trs,84 where the letter was in explicitly contractual form: Dear Mr Cairney, As desired by you I hereby put in writing my promise to you namely that you are to receive out of my estate, after my decease, the sum of fifteen thousand pounds sterling. 78 See Traquair v Blushiels (1626) Mor 3,591; the cases of Thomsons v Creditors of Alice Thin (1675) Mor 3,593 and Grant v Grant (1679) Mor 3,596, referred to by Lord Curriehill in Miller v Milne’s Trs (1859) 21 D 377 at 396-397; Curdy v Boyd (1775) Mor 15, 946; Duguid v Caddell’s Trs (1831) 9 S 844; Murison v Dick (1854) 16 D 529; and the discussion of these latter three cases in Paterson v Paterson (1893) 29 R 484 at 486-487. See too Stair 3.2.12; cf Mitchell v Wright (1729) Mor 8,082. 79 Miller v Milne’s Trs (1859) 21 D 377 at 396. 80 (1675) Mor 3,593. 81 Miller v Milne’s Trs (1859) 21 D 377 at 397 per Lord Curriehill. 82 (1831) 9 S 844. 83 At 847. 84 1916 SLT 357.

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That it was not all one-way traffic, however, is shown by the unusual case of Miller v Milne’s Trs,85 which again involved a letter to an officer in the Aberdeenshire militia, one Captain Gordon. The letter was from a married woman, Mrs Milne, and read as follows: As a mark of my sincere regard for you, and a return for many kind attentions shewn me, and one in particular in the absence of Mr Milne while in Edinburgh, that upon presenting this letter, after the death of Mr Milne and myself, that you shall be entitled to a couple of hunder pond at the first term after our death; and if I shall survive Mr Milne, upon presenting this you shall be entitled to demand four hunder in place of two …

This holograph writing was delivered on the same day it was written, in 1822, with a covering letter instructing Captain Gordon to “Have the goodness to throw the enclosed into your desk”, which he duly did, after carefully endorsing upon it the date and place of receipt. Mrs Milne survived both her husband and the captain, and on her death in 1853 left a considerable estate in trust to her trustees, with no mention of the earlier letters to the captain, and purporting to revoke “all former settlements made and executed by me at any time heretobefore”. Captain Gordon’s daughter, in her capacity as executrix of his estate, brought the action when the trustees refused to acknowledge that any claim against them was constituted by the writings in question. The matter was considered sufficiently important, and the law sufficiently unclear, for the court to consult all the judges of the Second Division and all the permanent Lords Ordinary for their written opinions on the question whether the letters to the captain imported (1) an immediate obligation, with the term of payment postponed, or (2) merely a donation mortis causa, or (3) a legacy. In consequence, the report of the case contains a useful and detailed discussion of the general legal problem by the various judges, but unfortunately without any real consensus emerging: quot homines, tot sententiae. Four of the judges thought that the letters imported an immediate, irrevocable obligation; five that they constituted a legacy; and three that there was a donation mortis causa. The court held, in conformity with the views of the majority of the consulted judges, that the claim had to fail, for no matter how the grant in favour of the captain was classified, it was personal to him, and therefore fell by his predeceasing the granter. One can readily sympathise with Lord Ivory’s lament that the various judges consulted had arrived at their conclusions “on a tota re perspecta view of the case, rather than on the points of law 85 (1859) 21 D 377.

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submitted, as to which I am more puzzled now than I was at first”.86 Rather more convincing is the decision in Trotter v Trotter.87 There the letter read: “My dear Joanna, The five hundred pounds I had settled, as a legacy, to my sister, she has given up; so I give it to you, besides the two hundred I had left you before; all from your affectionate aunt.” The gift in this case, being clearly linked to other legacies, was itself held to be testamentary in character, and accordingly revocable. D. CONCLUSION

Succession agreements fall into two broad categories: the classic or indirect type which attempts to affect a succession, by influencing the contents of a will; and the direct type, which dispenses altogether with a will and itself purports to effect a succession on death directly, by contract. Roman law was concerned primarily with the former type, and prohibited such agreements. South African law has extended the prohibition to include the second type as well. Scots law has not followed Roman law in this regard and has no qualms about enforcing both types of agreement. The prohibition on pacta successoria in modern South African law rests on two considerations: a desire to preserve freedom of testation, and the perceived need to prevent an evasion of testamentary formalities. It is apparent from Scots law’s willingness to enforce undertakings to leave property to another on death, or not to revoke a legacy, that testamentary freedom is not as highly regarded in that system. It is unlikely that South African law will alter its stance in relation to these classic forms of pactum successorium. As regards the indirect form of pactum successorium, however, there are already signs of dissatisfaction with the existing prohibition in South Africa, and it is not unlikely that some relaxation will follow in due course. In this sphere the dividing line between valid and invalid agreements is drawn on grounds that many regard as over-subtle and hence suspect. An agreement is a pactum successorium if it purports to bind a person to a post-mortem disposition of an asset in his or her estate. It does so if two conditions are met: the agreement purports to be irrevocable; and the right to the benefit in question vests in the beneficiary only on or after the death of the promisor. Donations mortis causa are now regarded as a species of pactum successorium, and have accordingly been made to fit the same pattern: such a donation is one that vests the right to the gift absolutely only on or after the death of the 86 At 393. 87 (1842) 5 D 224.

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donor; and it is saved from invalidity by reason of the fact that it is by operation of law revocable, and must comply with testamentary formalities. The question arises why other pacta successoria (at least of the indirect type) should not similarly be saved from invalidity by imposing the same consequence (automatic revocability) and requirement (testamentary formality, subject to possible condonation). Unilateral “promises” to bestow some benefit on another after death present no real problem in South Africa because these are never enforceable as contracts; if they are to have any effect at all, they must be executed in testamentary form. In Scotland, however, where a promise does not need acceptance in order to be enforceable, such undertakings cause a great deal of trouble, not by reason of any question of validity or invalidity, but because of the need to distinguish promises from legacies (and, to a lesser extent, from donations mortis causa). The need arises from the different consequences that attach to contractual promises, on the one hand, and to testamentary bequests, on the other; in particular, the fact that the latter can generally be revoked by subsequent will, while the former cannot. The distinction is essentially one between inter vivos and mortis causa dispositions, and accordingly turns, as in South African law, on the time of vesting of the right to the benefit, which in turn depends on the intention of the parties, or at any rate of the granter of the benefit. If the intention was that the grantee should acquire no vested right to the benefit until after the death of the granter, the disposition is one mortis causa and accordingly a revocable legacy. If it was that the grantee should immediately acquire an unconditional right to the benefit, the disposition is one inter vivos and accordingly an irrevocable contractual promise. And finally, but least clearly, if the right to the benefit was intended to vest in the grantee inter vivos, but not absolutely, being conditional upon non-revocation and the grantee outliving the granter, the grant is a donation mortis causa.

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Index

abandonment of property, 78–9 adoption in Roman Law, 38–9 in Scotland, 62–3 ageing testator, 88–91 mental incapacity, 86–8 agnatic parentela(s), 53, 57 Alzheimer’s patient, 94–5 Anton, A E, 58–9 ascendants and descendants, in Roman Law, 42–4 bairn’s part, 60 Balfour, Sir James, 165 Bankton, Lord, 240 bonorum possession, 32–4 capacity to execute a will, 86–93, 95–7 medium other than writing, 91–2 mental incapacity, 86–8 Cicero, 143 collation inter heredes/inter liberos, 58 compulsory heirship, in Roman Law, 27–48 and adoption, 38–9 background, 27–8 complexity, 47 descendants/ascendants, 42–4 disinheritance, 30–2, 70 dispositions inter vivos, 37–8 in form, 41–2 and freedom of testation, 28–30 historical interest, 47–8

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Justinian’s reforms, 39–42 and legitimate expectations, 45–6 praetorian modifications, 32–4 quarter of the poor widow, 45–6, 70–2 querela inofficiosi testamenti, 34–7, 40–1, 70 conditio si institutus sine liberis decesserit, 177–92 existing forms, 186–91 and indices, 179–80 meanings, 177–80 origins, 180–6 reforms, 191–2 conditio si testator sine liberis decesserit, 179–80 conquest, succession to, 54 constitutionalisation approach, 103–5 contra bonos mores see public policy power Cooper, Lord, 59n, 61, 65–6 Craig, T, 165, 171 curtesy of England (curialitas Anglie), 56 dead hand control see testamentary conditions dead’s part, 60 deathbed, law of, 52 Declareuil, J, 70 delegation of testation, 85–6 descendants and ascendants, in Roman law, 42–4

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direct substitution, 187–8 implied clause, 189 Dirleton, Lord, 170–1 discrimination, abolition, 7–8 disinheritance, 30–2, 70 divided ownership, 18, 20–1, 76–7 divorce, impact, 8 England, revocation of wills, 146 by birth of child, 148 by divorce, 151 by marriage, 150–1 mutual wills, 215–17, 225 contract theory, 219–21 entail, 162–3 equitable v legal ownership, 18, 20–1, 76–7 Erbverträge, 217, 225 Erskine, J, 52, 170–2, 240 executors confirmation, 116–17 in Scotland, 58–9, 61, 65 fair balance approach, 103–5 Falcidia, 39–40 Familienfideikommiss, 163, 166–7 family, social developments, 6–7 Fellows, M L, 203 Fenet, P A, 214–15 fideicommissary substitutions, in Scotland, 156–76 background, 156–7 conclusions, 175–6 definition, 159 entail, 162–3 non-statutory inter vivos tailzies, 167–9 with power of alienation, 161–2 and Reception, 163, 170–2 reform proposals, 173–4 outside Scotland, 157 and South Africa, 174–5, 184–6, 186–7 substitution, 158 survivorship/special destinations,

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index

167–8 tailzie, 163–7, 167–9 tailzied destination, 167 testamentary, 169–70 fideicommissary substitutions, in South Africa, 174–5, 184–6, 186–7 Fideicommissum, 65, 75, 76–7, 158–9 multiplex, 172–3 and trust, 159–60 financial assets, 9 forfeiture clauses/events, 115–40 absolute exclusions, 137 attached by testators, 122–3 background, 115 beneficiary’s position, 117–19 centrality of vesting, 120 classes of forfeiture, 119–20 conclusions, 140 conduct/matters prior to testator’s death, 120–4 employment suitability, 122 event/state of affairs after testator’s death, 124–7 executor’s position, 116–17 family circumstances, suitability, 122–3 financial standing, 122 flexibility, 139–40 freedom of testation absence, 135–7 existing doctrines, 137–9 future event/conduct before ownership conveyed to beneficiary, 129–32 future event/state of affairs, 128–9 gateways to vesting, 123–4 improper liferent, 131 legally implied exclusions, 120–1 and obligations, 133–4 obscurity in authorities, 132–3 personal/potestative conditions, 126–7 post-transfer of ownership, 132–5 real and personal rights, 115–16 and real rights, 133

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index

residence suitability, 122 resolutive condition,128–9 spes successionis, 125–6 survivorship, 124–5 and trusts, 127, 130–1, 131–2, 134–5 underlying condition, 129–30 formelles Noterbrecht, 31–2 France, revocability of mutual wills, 213, 214–15 freedom of testation, 9, 14–17, 78–98 alteration/revocation, 93–5 capacity see capacity to execute a will Civil Law v Common Law, 14–16 conclusion, 98 delegation, 85–6 deviations from, 82 forfeiture see forfeiture clauses/ events inheritance contracts, 16–17 legitimate portion, 82–5 non-discrimination provisions/ instruments, 17 parents’ liabilities, 83–4 principle, 14, 78–80 priority of testamentary succession, 80–2 in Roman law, 28–30 statutory will, 95–7 and tax avoidance, 84–5 undue influence, 82, 89–90 and vesting, 231–4 Friedman, L M, 6, 8 German Civil Code compulsory portion, 27–8 and harmonisation, 5–6 mutual wills, 218–19 Germany, revocability of mutual wills, 213–14, 225 contract theory, 217–19 Gestaltungsrechte, 196 gift, principle, 8 Glanvill, De Legibus et Consuetudinibus Regni anglie, 51, 52, 59–60 Glenn, H P, 19

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Glück, C F, 47 Goebel, J, 79 Goethe, 81–2 Grotius, H, 212 Inleiding, 63 Hahlo, H R, 149 Halliday Report, 173 harmonisation, 4–10 economic factors, 8–10 functional-typological method, 4–5 possibilities, 5–6 social factors, 6–8 heir at law/heirs portioners, 53, 57 heirs in mobilibus, 58 heritage see succession law, in Scotland Hope, T, 165–6 Huber, U, 212 Hume, Baron, Lectures, 60–1, 63, 65 illegitimate child, as filius nullius, 121 improper liferent, 131 inheritance contracts seesuccession agreements intestate succession, 2–3, 81–2 Netherlands, 195–7 Italy, revocability of mutual wills, 215 ius commune, 64 ius relictae, 60, 64 Ivory, Lord, 240 judicial will, 95–7 Justinian Codex, 181, 186 and compulsory heirship, 39–44 Digest, 64, 191 Kötz, H, 4, 12 Langbein, J H, 102 Leage, R W, 143 Lee, R W, 63 legal v equitable ownership, 18, 20–1, 76–7 legitim/bairn’s part, 60

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index

legitimate portion claim, 70–2, 82–5 Leleu, Y-H, 204 liferent, improper, 131 living arrangements, testamentary conditions, 112 Lupoi, M, 18–20, 22 Macdonald, D R, 181–2, 240 Mackenzie, Sir George, 163 Maitland, F W, 53–4 Marcadé, V, 214 marriage, testamentary conditions, 106–8 matrimonial property law, Netherlands, 194–5 mental incapacity, 86–8 Mevius, D, 213 moveable succession, 57–61 mutual wills, revocability, 208–25 conclusions, 224–5 contract theory, 217–24 dilemma, 208–10 outside Netherlands, 213–17 in Roman-Dutch law, 210–12, 224–5 Netherlands children, protection, 201–2, 206 intestate succession, 195–7 matrimonial property law, 194–5 mutual wills, 210–12, 215, 224–5 parentela system, 205 revocation of wills, 146 by birth of child, 148 by divorce, 152 by marriage, 150 succession law in the Netherlands see succession law, in Netherlands surviving spouse, protection, 197, 198–201 testate succession, 197–8 usufruct rights, 197, 200–2 non-probate transfers on death, 9 Novel 108, 161 Novel 159, 172

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pacta successoria see succession agreements Papinian, 32, 181, 185 parents’ liabilities, 83–4 pater familias death, 29–30 freedom to institute single heir, 69–70 paternal kin rule, 53 Peckius, P, 211 personality rights, 79–80 Pflichtteil, 27 Pintens, W, 10 Plucknett, T, 54 Pollock, Sir F, 53 Principles of International Trust Law, 22 private international law, 10–14 public international law instruments, 11–12 public policy power, 101–5 background, 101–2 fair balance approach, 103–5 recontracting approach, 102–3 quarter of the poor widow (quarta uxoria), 45–6, 70–2 querela inofficiosi testamenti, 34–7, 40–1, 70 Regiam Majestatem, 50–1, 52 registration of wills, 92–3 religion, testamentary conditions, 108–11 revocation of wills, 141–55 by birth of child, 143, 147–8 by divorce, 151–4 by marriage, 148–51 and birth of child, 143–4 by time, 144 conclusion, 154–5 historical background, 143–4 mutual wills see mutual wills, revocability nature of revocation, 142–3

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overview, 144–6 in Roman-Dutch law, 210–12 Roby, H R, 143 Roman-Dutch law, 67, 68, 69 and wills, 73–4, 210–12 sasine, 54 Schilter, J, 213 Schulz, F, 47 Scotland conditio si institutus sine liberis decesserit existing forms, 186–91 origins, 180–4 reform proposals, 191–2 fideicommissary substitutions, 156–76 forfeiture clauses and events, 114–40 history, 49–66 adopted children, 62–3 background, 49–51 collation inter heredes/inter liberos, 58 courtesy, 55–6 dead’s part, 60 and English law, 63–4 executors, 58–9, 61, 65 legal rights in moveable succession, 59–61 next of kin, 57–8 paternal kin, 53 primogeniture, 52–3, 58 and Roman law, 64–6 rules, 53–4 sasine, 54 mutual wills, 221–2 revocation of wills, 145–6 by birth of child, 147–8 by divorce, 151–2 by marriage, 150 conditio si testator sine liberis decesserit, 179–80 succession agreements see succession agreements, in Scotland

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Scottish Law Commission, Report on Succession, 173–4, 192 Skene, Sir J, 56, 60 social change, and revision of laws, 202–4 Sonnekus, J C, 205 South Africa black customary law, 7–8 conditio si institutus sine liberis decesserit comparison with Scots law, 188–9 reform proposals, 191–2 existing forms, 186–9 origins, 184–6 direct substitution see direct substitution fideicommissary substitutions, 174–5, 186–7 history, 67–77 background, 67 conclusion, 77 execution of wills, 74–5 legal-political history of South Africa, 67–9 legitimate portion claim, 70–2 testamentary content, 75–7 testamentary form, 73–5 testation, freedom and limitation, 69–73 mutual wills, 222–4, 225 revocation of wills, 144–5 by birth of child, 147 by divorce, 152–4 by marriage, 148–50 succession agreements see succession agreements, in South Africa and trust, 20–1, 75–7 spes successionis, 125–6 Spitko, E G, 203 Stair, Viscount, Institutions, 50, 53, 57, 60–1, 65–6, 160, 165, 182, 240 statutory will, 95–7 Stryk, S, 213 substitutio fideicommissaria see fideicommissary substitutions

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index

succession forced, 6 moveable, 57–61 Roman law see compulsory heirship, in Roman Law testate/intestate, 2–3 to conquest, 54 to heritage, 51–7 universal, 25 succession agreements, 16, 213, 214, 226–7, 234, 238, 245–6 succession agreements, in Scotland, 238–45 promises, legacies and donations mortis causa, 241–5 scope of permission, 238–9 undertaking not to revoke bequest, 239, 240–1 undertaking to leave property to another, 239–40 succession agreements, in South Africa, 228–38 agreements upheld, case law, 228–30 decision in Borman, 230–1 donations mortis causa, 237–8 freedom of testation and vesting, 231–4 prohibition, scope, 228 test for pactum successorium, 234 application in McAlpine, 234–5 dissenting judgment, 235–7 succession law, 25–6 differences in legal technique, 204 functions, 2 indigenous character, 3–4 social change and revision of laws, 202–4 succession to heritage, 51–7 succession to moveables, 57–61 testate/intestate succession, 2–3, 81–2 testation powers, 59–61 succession law, in Netherlands, new law, 193–207 analysis, 198–202

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background, 193–4 comparative issues, 202–6 evaluation/conclusions, 206–7 outline, 183–98 survivorship, 124–5 tailzie, 163–7 tax avoidance, 84–5 testamenta inofficiosa, 34–7 testamentary conditions background, 99–101 conclusion, 112–13 and public policy see public policy power in restraint of living arrangements, 112 marriage, 106–8 religion, 108–11 testate succession, 2–3 Netherlands, 197–8 testation see freedom of testation Theodosius the Great, 144 transfer of estate upon death, 22–5 background, 22–3 categorisation, 23–4 role of executor/representative, 24–5 Treuhand, 18, 76 trust, 17–22 background, 17 beneficiary’s position, 118–19 Civilian/mixed jurisdictions, 19–21 continental law, 18–19, 21–2 as distinctive to Common Law, 17–19 and divided ownership, 18, 20–1, 76–7 executor’s position, 117 and fideicommissum, 159–60 and forfeiture, 127, 130–1, 131–2, 134–5 in Scots law, 64–5 and South African succession law, 75–7 undue influence, 82, 89–90

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index

United States, non-probate transfers on death, 9 universal succession, 25 US Uniform Probate Code, 202–3 usufruct rights, 197, 200–2 Van Leeuwen, S, 212 Verbeke, A, 204 vesting and forfeiture, 120, 123–4 and freedom of testation, 231–4 Vinnius, 63 Voet, J, 63, 185 wealth, changes in, 9–10

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253

widow’s/widower’s courtesy, 55–6 wills capacity see capacity to execute a will centralised registration, 92–3 conditiones see conditio si institutus sine liberis decesserit importance, 2, 9 in medium other than writing, 91–2 mutual see mutual wills, revocability revocation see revocation of wills and Roman-Dutch law, 73–4 in Scotland, 61 substitutes, 9 Zimmermann, R, 24, 61 Zweigert, K, 4, 12

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