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THE SUCCESSION/ BORDERLAND: A VIEW FROM George Gretton (U of ) [Draft of 21 November 2013]

Introduction

This paper has ten – very unequal - parts.

(I) The first part asks whether succession is part of the core of legal education in various countries. This does not itself deal with the property/succession interface, but isinteresting by way of background.

(II) The second part looks at where succession law is located in the map of the law in different legal systems, and also at where it should be located.

(III) The third part looks – briefly – at matrimonial .

(IV) The fourth part considers – again briefly - the types of property right that may result from death.

(V) The fifth part is “Proprietary death planning: (i) trusts”, but this is brief, the subject of trusts being too large for discussion here.

(VI) The sixth part is “Proprietary death planning: (ii) ”.

(VII) The seventh part is “Proprietary death planning: (iii) joint property, tontine, substitutions.” This part considers arrangements whereby property can be co-owned by X and Y in such a way that on X’s death Y becomes sole owner – regardless of what general succession law would say as to who should inherit X’s share.

(VIII) The eighth part is “Proprietary death planning: (iv) substitutions, remainders and entails”. This considers arrangements whereby property can be made subject to successive ownership, so that X is owner, and when s/he dies, Y becomes owner - regardless of what general succession law would say as to who should inherit X’s property.

(IX) The ninth part considers succession law as an aspect of transfer law – the manner in which rights are transferred. The law relating to the transfer of rights – at least of real rights – is always considered a central feature of property law. Death gives rise to transfer, from the dead to the living. To what extent is transfer law different in the mortis causa case from what it is in the inter vivos case?

(X) Conclusions

Although the title to this paper contains the words “a view from Scotland”, this paper has only a small amount of . Its approach is comparative, and yet admittedly grossly inadequate as a comparative piece. Not much comparative work has been done in this area,1 and this paper merely offers some preliminary thoughts. And at the outset I should apologise, at a Ius Commune conference, for my as- yet inadequate knowledge of Belgian and Dutch law in this area.

Part I: Succession law: part of the core?

1 When preparing this paper I looked at the shelves in Edinburgh University Library to see what monographs there were on comparative succession law. The answer? Not very much, when compared with (for example) comparative property law or comparative law. When this subject was first being discussed, Bram wrote something in an email which set me thinking. This was that succession law was a topic that he had never studied. That is of course not a reflection on Bram’s scholarship, but rather on how succession law is perceived in different countries. It is not part of the core curriculum in the Netherlands. What about other countries? I have not made any formal investigations, and indeed the study of comparative law curricula is as far as I know an unexplored subject, though one that would certainly be worth exploring. My impression is that – speaking generally - succession is not part of the core curriculum in most of the world, whilst in the world the situation is mixed, it being core in some countries (including Germany, Austria and I think Italy) but not others, such as the Netherlands, and . I have not yet verified the Belgian position. As for the so-called mixed systems, it seems that succession law is core. This is true in Scotland, Quebec and , for instance.

The issue is significant. It seems to me that succession law should be in the core. Death is (apart from birth itself) the one universal of human life. People may or may not be involved in property transactions, or marry and have children, or go into business, or be involved in or in crimes, whether as victim or wrongdoer. But all die. Moreover, succession law is important for property law, which is part of the core everywhere.2 Areas of law can be near to or far from each other, and to understand a given area it helps to know something of neighbouring areas. Property law has more than one neighbouring area.

One is insolvency law, in all its various forms, including the law of forced execution, because the test of the nature of a patrimonial right is often to be found by examining what happens in insolvency. Succession law has certain parallels with insolvency law. In English one speaks of “winding up” in both cases. One also uses the term “estate” in both cases. In both there exists a mass of assets, plus a set of claims, and the claims will exhaust the estate. In both there are rules about priority. In many legal systems (specially the Common Law systems) there is an administrator in both. So there is a triangle of connection: (i) Property law and succession law; (ii) succession law and insolvency law; (iii) Insolvency law and property law.

Another is succession law, which is mainly about the collision of property law with death. In very few parts of the world is insolvency law part of the core curriculum. In fact as far as I know Scotland is the only place. We all believe that home is best, so you won’t be surprised if I say that I think that property law is best studied in conjunction with at least some basic insolvency law. And of course I think the same for succession law.

The term property law has wider and narrower senses. In the broad sense it means patrimonial law, and succession is relevant because almost all patrimonial rights have to be dealt with in the case of death. Those patrimonial rights include real rights.

Part II Succession law: location on the map of the law?

I have called succession law a “neighbouring area” to property law. It can in fact be categorized in more than one way. It can be regarded as a branch of the law of persons, and more specifically of . For a married person, death is one of the two ways in which a marriage can end, and the surviving spouse has (usually, anyway3) patrimonial rights in either case. Moreover, those related by blood have rights in , and, in many systems, in testacy too, and such claims are rooted in the law of persons. Succession law often brings in issues of family law, such as the status of illegitimate persons and adopted persons, and, nowadays in many legal systems, the possible rights of cohabitants.

2 With this qualification, that in the Common Law world, only land law is in the core. 3 Legal systems usually give the surviving spouse succession rights in intestacy, and also in testacy, ie, in the latter case, forced heirship rights. But in some systems the surviving spouse has no special succession rights (ie nothing other than what may be given in the testament, if any) on the ground that there matrimonial property law regime is sufficient. Nevertheless, I know of no legal system, except perhaps Poland,4 that actually places succession law within the law of persons.

The Pandectists took the view that succession law should be regarded as a separate and distinct branch of private law, independent of both property law and family law, and that approach soon became the norm. In general, no code before about 1875 had succession law as a distinct book, and all codes after that date have had it as a separate book, but further research would be needed to confirm details and to for exceptions.

The Roman and ius commune map

The Ius Commune inherited the Gajan scheme:

1. Personae 2. Res 3. Actiones

“Res” is usually translated into English as “things” but its meaning is broader than the English word, Most private law comes under the heading of res. The problems of this scheme became apparent in the 19th c.

The German map

The German is typical: succession law has its own separate book. 5

1. Allgemeiner Teil 2. Recht der Schuldverhältnisse 3. Sachenrecht 4. Familienrecht 5. Erbrecht

The Dutch map

The Dutch civil code also places succession law in its own book:

1 Personen- en familierecht 2 Rechtspersonen 3 Vermogensrecht in het algemeen 4 Erfrecht 5 Zakelijke rechten 6 Algemeen gedeelte van het verbintenissenrecht 7 Bijzondere overeenkomsten 7A Bijzondere overeenkomsten; vervolg 8 Verkeersmiddelen en vervoer (9 Absent: reserved for IP rights) 10. Internationaal privaatrecht

The French and Belgian maps

4 I make this qualification because I note that succession law is included in Stanislawa Kalus and Magdalena Habdas, Family Law in Poland (2011). 5 By contrast, the Prussian civil code, while it devoted a distinct unit to succession law, did so under the general heading “Von der Erwerbung des Eigenthums überhaupt, und den unmittelbaren Arten derselben insonderheit” (Part 1,Title 9). Within that title, Section 8 was “Von Erwerbung der Erbschaften.” I would guess that the Part 1 Title 9 conception was the basis of Book 3 of the French civil code.

French law, and many systems following it, have a complex and dysfunctional structure.

 Titre préliminaire : De la publication, des effets et de l'application des lois en général  Livre I : Des personnes  Livre II : Des biens et des différentes modifications de la propriété  Livre III : Des différentes manières dont on acquiert la propriété  Livre IV : Des sûretés

Property law is to be found not only in Book II but also in Book III and Book IV. Succession law is in Book III (together with much else, including the ). Even within Book III it does not form a separate part. Title I is Des successions. Title II is Des libéralités, and this covers both donations inter vivos and legacies. The Belgian civil code is substantially the same. To those who do not belong to this tradition, all this looks strange, and, indeed, it looks strange even to many of those within that tradition.

The Scottish map

Scotland has no civil code and so in a sense the question does not arise. But Scots lawyers do tend to think in terms of personae/res/actiones. In the , which set up the and , private law was defined thus:

References in this Act to Scots private law are to the following areas of the civil law of Scotland—

(a) the general principles of private law (including private international law), (b) the law of persons (including natural persons, legal persons and unincorporated bodies), (c) the law of obligations (including obligations arising from contract, unilateral promise, , unjustified enrichment and ), (d) the law of property (including heritable and moveable property, trusts and succession), and (e) the law of actions (including jurisdiction, remedies, , procedure, ,6 recognition and enforcement of orders, limitation of actions and arbitration)…

and include references to judicial review of administrative action.7

This is a ghostly framework of a Scottish civil code. It is the Gaian scheme with two changes. (i). There is the addition of a preliminary Allgemeiner Teil, and (ii) the “res” category has been divided into two: obligations and property. And succession is allocated to “property”.

And where should it be located?

The almost complete consensus that has existed since the late 19th century that succession law is best regarded as a distinct area of law, and as separate from both family law and property law, seems to me right – even if that is not something that is wholly accepted by my own home legal system.

Part III: Matrimonial property law

Matrimonial (aka marital) property law can confer proprietary effect through the fact of marriage. One possibility is that co-ownership is automatically created in the assets of both spouses, though usually certain items are excepted, and are the separate property of just one spouse. There are different types of regime, and many legal systems (such as Belgium) offer a menu from which spouses can choose.

In theoretical terms, it could be argued that matrimonial property regimes do not lie in the property/succession borderland, because the rights that they confer are inter vivos property rights

6 “Diligence” = forced execution. 7 That this should be calssified under „private law“ is extraordinary. rather than succession rights, but in practical terms they certainly do. Thus one cannot understand what happens on the death of a married person solely from the succession law of the country concerned: one also needs to know about that country’s matrimonial property regime.

The reason that this part is brief is that although in Scotland marriage did once give rise to a type of communio bonorum, in modern law “marriage shall not of itself affect the respective rights of the parties … in relation to their property.”8 On death, the surviving spouse has certain rights (which can prevail even against what is said in the testament) but these are regarded as personal rights (relative rights against the executor) and are simply succession rights, not property rights.

Part IV: The types of property right that may result from death

In general, the types of property right that may result from death are the same, in all legal systems, as the types of property right that may arise from inter vivos transactions. Thus following a death the successors may acquire simple ownership, or co-ownership, or , and so on, but all these types of right may also be acquired inter vivos. 9

But of course there might be exceptions in particular legal systems. I know of no exception in the Common Law world. There is no exception in Scotland. But in Germany there is, I think, an exception in the form of what in modern German legal terminology is called Vorerbe and Nacherbe. This is discussed in Part VIII below.

Part V: Proprietary death planning: (i) trusts

Trusts are polymorphous, and one of their jobs is to inhabit the property/succession borderland. But the subject is too vast to be discussed here, and in any case most countries in Europe do not have the trust, at least in anything like the English or US sense.

Part VI: Proprietary death planning: (ii) usufructs

Property rights can be created with an eye to future death: proprietary death planning. The right of the future de cujus is formed so that the desired consequence will take place on death, and do so independently of the general law of succession. The right of the successor is thus built in to the property rights. Property law is being used to attain succession objectives.

One way of doing this is for the future deceased (I’ll call her Lucretia) to transfer ownership to X, while she is still alive, but reserving a usufruct.10 This is possible everywhere.11 Of course it has the drawback of inflexibility: she cannot later change her mind. Usufructs are familiar round the world and I’ll say no more about them here.

Part VII: Proprietary death planning: (iii) joint property, tontine, substitutions

From a technical point of view, more interesting than the usufruct are arrangements in which Lucretia retains ownership (whether in full or in part), but her ownership has an internal guidance system

8 Family Law (Scotland) Act 1985, s 24. 9 For German law a qualification to this may be noted. Two or more joint heirs acquire a special sort of co- ownership: Gesamthandseigentum (BGB 2032 ff). This cannot normally be acquired by an inter vivos transaction: for instance if X and X buy a car together what they obtain is Bruchteilseigentum. But Gesamthandseigentum can arise in other ways, in certain specified cases, of which joint is only one. (For the others see BGB 54, 705 ff and 1415 ff.) So one cannot say that Bruchteilseigentum can arise only by reason of death. 10 In usufruct goes by the name of liferent, an odd term because no rent is payable. 11 Though in , a life interest can now be created only as an equitable, not as a legal, interest: Law of Property Act 1925. This reform was not adopted in much of the Common Law world. For instance it was not adopted in the USA. inserted by the rocket scientists (the notaries in the Civil Law world, or the chamber practitioners in the Common Law world) whereby the property will pass to the chosen person, regardless of whether general succession law would give the property to that person. Like the usufruct, this is proprietary death planning, but it is more complex.

The subject can be divided into two. In the first (discussed in this part), two (or more) people own a property together in such a way that on the death of one, the other will become sole owner. In the second (discussed in the next part, Part VIII) two (or more) persons take property successively, ie first X then Y. The two actually link up, for Part VIII cases are about (to use a civilian term) substitutions, and in some legal systems (such as Scotland) substitutions are in fact the mechanism used in Part VII cases.

In the Common Law systems, Lucretia and another person,12 call him Giovanni, can hold as “joint tenants”13 whereby on the first death the survivor is owner of the whole. This is common as between husband and wife and cohabitants.

In France the same result can be achieved by tontine. Here Lucretia and Giovanni are co-owners, but when one of them dies the other is sole owner, and, by a rule that to outsiders seems strange, the survivor is retrospectively deemed to have been the sole owner from the beginning. To what extent a similar arrangement is possible in Germany or the Netherlands I do not know.

In Scots law this arrangement is also common. But its conceptualisation is distinctive. In Scots law this is called co-ownership with a survivorship destination.14 “Destination” means substitution. This is how it works: Lucretia has a 50% share, subject to a substitution to Giovanni, and Giovanni likewise has a 50% share, subject to subject to a substitution to Lucretia. So if she dies first, he takes her share as substitute.15

This brings us to the complex subject of substitutions and their relatives, remainders and entails.

Part VIII: Proprietary death planning: (iv) substitutions, remainders and entails

There are, in broad terms, two sorts of substitution.

(a) There is the substitutio vulgaris, in which a testament names a back-up heir or legatee, in case the first-named fails to take. All legal systems have this. If Lucretia leaves her house to Annuziata, whom failing to Bianca, if when L dies, A is also dead but B is alive, B takes the house. This sort of substitution is purely a doctrine of succession law, and nothing further will be said about it here.

(b) There is the substitutio fideicommissaria, which is quite different. Here X acquires full ownership. But when s/he dies, the property does not pass according to the ordinary rules of succession (whether testate or intestate) but instead to another person, who has been named in the substitution.

In some countries, such a France, substitutions (in this latter sense) do not exist.16

In some, such as Germany, they exist, but can (I think) be created only mortis causa. So in Germany, Lucretia leaves her house to Annuziata as Vorerbe and to Bianca as Nacherbe. Lucretia dies, and both

12 More than two persons are also possible. 13 The term is confusing because they hold the fee simple, not a tenancy. The contrast is the “tenancy in common”. This parallels the French propriété en indivision. 14 Terminology: French law distinguishes (i) propriété en indivision and (ii) propriété en tontine as being quite separate categories. In Scots law, there is a single category of pro indiviso property, with the Scots equivalent of tontine being a special type of pro indiviso property. 15 See further Gretton, “Fideicommissary Substitutions: Scots Law in Historical and Comparative Perspective”, in Kenneth G C Reid, Marius J de Waal and Reinhard Zimmermann (eds) Exploring the Law of Succession (2007). For a student-oriented account, see Gretton/Steven, Property, Trusts and Succession (2nd edn 2013). 16 They existed formerly, but were abolition during the Revolution. Annuziata and Bianca survive. Annuziata acquires full ownership. But when she dies, Bianca inherits the house from her, even if the rules of succession law applicable to Annuziata’s estate would have given the house to someone else.17 At first glance this arrangement might look like ususfructus to Annuziata and nudum dominium (nuda proprietas) to Bianca but that is not the case. (In German law a testator would also have that option, ie of giving Niessbrauch to Annuziata and naktes Eigentum to Bianca.)

In yet other countries, the substitutio fideicommissaria remains fully competent, ie it can be created both inter vivos and mortis causa. I have already explained that what in France would be effected by tontine is in Scotland effected by fideicommissary substitution. And in Scotland fideicommissary substitution can also be created mortis causa, as in Germany.

In the Common Law world, the parallel to fideicommissary substitution is the remainder, and in general can be created either mortis causa or inter vivos. So X could convey to Y with remainder to Z. Y would acquire the fee simple, but on Y’s death the property would pass to Z. Z is called the remainderman.18

An extreme form of substitution is what is called in England the entail, in Scotland the tailzie, the majorat in France, the Familienfideikommiss in Germany and other names in other countries. After the Reception this was generally (though not in England) conceptualized in terms of the substitutio fideicommissaria, but it probably had non-Roman roots as well. It has been abolished almost everywhere, I believe.19

All that is just a sketch. Details vary greatly from one legal system to another.20 As far as I know the subject has not be exposed to proper comparative study.

Part IX: Succession as a branch of transfer law

General

The transfer of rights is regarded as part of property law.21 Law students are taught about inter vivos transfer. They are told how land is transferred, how moveables are transferred, how money claims are transferred, and so on.22 But transfer mortis causa receives less emphasis, and in those countries where succession is not part of the core, students may learn nothing about it. But it is an important part of transfer law. There has been little comparative or historical study.23

17 Given that Vorerbschaft/Nacherbschaft straddles the property/succession boundary, it is to my mind puzzling that it is almost wholly ignored in texts on German property law – at least those that I have looked at. 18 What was said above about life interests in the Common Law world applies equally to remainders. Thus in modern a remainder can exist only in , but the older rule continues to apply in eg the USA. 19 Seemingly the entail is not wholly extinct in Jersey law. 20 For instance, in Scots law the institute is free to sell inter vivos, and if so the substitution is defeated, and in certain exceptional cases can make a testament that defeats the substitution. In other words, whilst a substitution always trumps the rules of intestate succession, it does not always trump the rules of testate succession. (In German law there is the possibility of the befreiter Vorerbe, who is nearer to the Scottish equivalent than is the ordinary Vorerbe.) 21 In some legal systems, only transfers of corporeal property are seen as belonging to property law; transfers of money claims are seen as part of the law of obligations, transfers of IP rights as part of IP law etc. Scots law, more than any other I know, stresses the unitary nature of transfer law, albeit that of course in Scotland as elsewhere the transfer rules vary to some extent according to the types of property. This stress of the unity of the subject has been a constant theme in Scots law since at least the 17th century. 22 There are exceptions. In the Common Law world assignation (in the sense of the transfer of the transfer of personal rights etc) is seldom taught. 23 Jan Peter Schmidt (Max Planck Institute for Comparative and International Private Law, Hamburg) is writing a Habilitationschrift provisionally called Der Erbgang in Europa, a comparative study of the way that property passes from the dead to the living. That will no doubt cast much light. It is to be hoped that it willeventually appear in an English translation. In some jurisdictions mortuus sasit vivum so that the heir acquires complete ownership as soon as the deceased breathes his last breath. The Germans call this Vonselbsterwerb, “through oneself acquisition.”

In probably all jurisdictions following a death the local court is involved, issuing an order in favour of the heir (Civil law Systems) or personal representative (Common Law systems).24 But in jurisdictions where the rule is mortuus sasit vivum this court order is declaratory (evidential0, not constitutive. Its functional is merely evidential. In other jurisdictions, the court order is constitutive. In the first case, transfer is effected by a combination of (i) the fact of death and (ii) the law. In the latter case the transfer is effected by the order of the court. In both cases the transfer differs from inter vivos transfer.

A legal system could adopt a half-way house. Scots law normally requires a court order (called “confirmation”) which has constitutive effect. But there used to be exceptions under which a testament could transfer property without the need for any court order. To what extent those exceptions may still exist today is arguable as a matter of theory. In practice today confirmation is always regarded as necessary, apart from some statutory exceptions for small estates.

If the country has a German-type land register, such a rule produces the interesting result that ownership passes to the heir even though nothing is registered. Later, when the declaratory court order has been obtained, the register will be changed, with Lucretia’s name deleted, and the heir’s name substituted. But until then the register was inaccurate.

In a legal system where a court order is necessary, ie constitutive, there is a different puzzle. Who owns the property in the interval between death and the date of the court order? Such legal systems can – and I would guess that most do - adopt a rule that the order has retroactive effect.

Scots property law is rather hostile to the idea of retroactive effect. And in fact our problem is worse than that. For immovable property we have a strong principle that there can be no acquisition without registration. So take this case. Lucretia dies, owning land, on 1 March. On 1 May her executor, Luigi, obtains confirmation. On 1 June Luigi is registered in the Land Register. For us, there is a problem about who owns the property from 1 March not only to 1 May but up to 1 June.

So Scots law must accept some sort of a hereditas jacens following the death. There exists virtually no discussion of the issue. My personal theory is that death does not end personality. It ends active capacity but not passive capacity, so that Lucretia still owns the property until 1 June. (But this idea is not free from difficulty. In the first place, it suggests that Scotland is crowded with the spirits of the living dead. Perhaps that does not matter. Another is this: what happens if someone owns land in Scotland but is a citizen, and domiciled in, a country where death definitely does terminate personality.)

Legatum per damnationem? Or legatum per vindicationem?

The usual rule is that a legatee acquires property by transfer from the heir/executor. That is true in both the Civil Law world and the Common Law world. In traditional terminology this is the legatum per damnationem. also allowed the alternative of legatum per vindicationem, in which the legatee acquired ownership directly on the death, without the property passing through the hands of the heir. Some modern legal systems (eg Poland) have this. Where it exists, the heir is not a successor universalis.

24 It is usual to contrast legal systems (i) which have followed the Roman law of universal succession to the heir, with (ii) the Common Law systems which interpose the executor, who acts as a fiduciary, and where there exists no heir. This contrast does exist but it seems to me a rather slight one. In both cases the heir/executor takes the whole estate. In both cases they are answerable to the creditors. In both cases the legatees have a claim against them for the legacies to be transferred, or paid. There is a difference in that the heir is entitled to keep everything that is left. But there may be nothing left. And in the Common Law countries the executor is usually (though not always) a beneficiary, quite possibly the residual beneficiary. There are some indications that Scots law recognized this in the past and may even still recognize it. But research would be needed. At all events, the modern position is that the legacy per vindicationem does not exist in practice, whatever might be the position in theory.

The advantage of this form of legacy is obvious: simplicity. In a system of mortuus sasit vivum the legatee needs the heir to act, and in a system such as Scots law the legatee needs to wait not only for that but also for the local court to act. The drawback is equally obvious: there may be claims against the estate (whether inter vivos claims, ie the outstanding obligations of the deceased) or claims arising by reason of death (death taxes and forced heirship rights), and these claims may mean that legacies cannot be honoured in full, or even at all. In such a situation the legacy per vindicationem is a problem.

The donatio mortis causa

The donatio mortis causa of Roman law still exists, in one form or another, in some European systems, including England,25 and Scotland.26 It is a hybrid institution, being simultaneously inter vivos and mortis causa. It is a gift made, during life, but in contemplation of death, and which is revocable until death, and which is also revoked if the done predeceases the donor.

In Roman law the revocability could act in either (i) a suspensive manner or (ii) a resolutive manner. The former case is, to my eye, little different from a legatum per vindicationem. Presumably I am not the first person to spot this.

The donatio mortis causa in Scots law flourished in the last third of the 19th century and in the early years on the 20th. Though it still exists, it has in practice disappeared. It is certainly a candidate for succession law bending property law. The leading case is still a case of 1867, the case which began the -lived donatio mortis causa boom, Morris v Riddick. Here a definition was given by the court:

Donatio mortis causa may be defined … as the conveyance of an immoveable or incorporeal right, or as the transference of moveables or money by delivery, so that the property is immediately transferred to the grantee, upon condition that he shall hold for the granter as long as he lives, subject to his power of revocation, and, failing such revocation, then for the grantee on the death of the granter…. If 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.27

This says that in Scots law the DMC works by way of resolutive condition. If that is right, then the result is to bend , which generally rejects the idea that ownership can be subject to a resolutive condition. (There can be a resolutive condition that has personal effect, triggering an obligation to re-transfer. But Scots law generally rejects a resolutive condition with real effect as far as ownership is concerned.28) The very expression “qualified right of property” raises one’s eyebrows. Whether Lord Inglis’s view would be accepted today is open to question, especially as to immoveable property.

PODS, TODS, Lady Bird deeds and the nonprobate revolution

In the USA – the procedure normally required when someone dies – is unpopular. It is regarded as slow and expensive. Since about the middle of the 20th century there has been the “the nonprobate revolution”29 whereby as far as possible assets pass from the dead to the living without

25 On which see Andrew Borkowski, Deathbed Gifts: The Law of Donatio Mortis Causa (1999). 26 The law was a mere footnote until 1867, when Morris v Riddick was decided. For the next fifty years or so there was a donation mortis causa boom. Today the subject has sunk back to its pre-1867 obscurity. 27 Morris v Riddick (1867) MacPher 1036 at 1041 per Lord President Inglis. 28 To what extent there can be real resolutive conditions for limited real rights is another question. 29 The term seems to have been coined by John Langbein, in his seminal paper “The Nonprobate Revolution and the Future of the Law of Succession” (1984) Harvard Law Rev 108. probate. Either the need for probate is wholly avoided, or at any rate the amount of property subject to probate is as small as possible. Of course, all this requires certain devices to be put in place during life. Without lifetime planning, everything must go through probate just as much today as 100 years ago.

The subject is large and only a few words can be said here. Nonprobate can involve several different techniques, including some of those mentioned above. (One is to transfer assets into a trust, so that following death there can be a simple inter vivos transfer from the trust to the chosen beneficiaries. If the trust provisions are hardwired, Lucretia cannot later change her mind, so typically these trusts (inter vivos in form but mortis causa in substance) contain the possibility for Lucretia to vary and cancel the beneficial interests. The simplest way to do this is the revocable trust.)

But two techniques have developed that are worth special mention. One is the POD, or “pay on death” arrangement. Lucretia has invested with X, and she directs X to pay Y as and when she dies. This can be done through a trust (X is regarded as a trustee and Lucretia has the power to nominate beneficiaries) or it can be done by simple contract, though in that case the legal system must recognize, at least to some extent, third party rights in contract. (For otherwise Y would not, after Lucretia’s death, be able to demand payment from X.)

Whereas the POD involves three parties (Lucretia, the fundholder, and the post-death beneficiary), the TOD involves only two. What happens is that Lucretia signs a deed of transfer of immoveable property, in favour of Y, and registers it. It is subject to a suspensive condition, in that it does not take effect until death. Moreover it is revocable until death. But if it is not revoked, when Lucretia dies, ownership (or rather the fee simple) passes instantly to Y.30

PODs are competent at common law in certain states, where the bear the name of Lady Bird deeds.31 In many other states they have been introduced by . But there are some states in which they do not exist.

This arrangement would not be possible in many countries, where the rule is that a registered transfer of immoveable property cannot be subject to a suspensive condition. Such countries include Germany and Scotland.

The TOD seems to be essentially the same as the legacy per vindicationem, and also, to some extent, the POD.

X Conclusions

30 See generally Susan N Gary, “Transfer-on-Death Deeds: The Non-Probate Revolution Continues” 2006 Real Property, Probate and Trust Journal 529. (For this reference my thanks to Alexandra Braun, Oxford.) 31 “Lady Bird” was the nickname of the wife of President L B Johnson, of Texas, and Texas is one of the states where PODs are competent at common law. But the origin of the name, to describe the common law POD, is unclear: different internet sources have differing explanations.