Free ebooks ==> www.ebook777.com www.ebook777.com Free ebooks ==> www.ebook777.com COMPARATIVE SUCCESSION LAW VOLUME I TESTAMENTARY FORMALITIES Free ebooks ==> www.ebook777.com This page intentionally left blank www.ebook777.com Free ebooks ==> www.ebook777.com Comparative Succession Law Volume I Testamentary Formalities Edited by KENNETH G C REID MARIUS J DE WAAL and REINHARD ZIMMERMANN 1 Free ebooks ==> www.ebook777.com 3 Great Clarendon Street, Oxford OX2 6DP Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York # The several contributors, 2011 The moral rights of the author have been asserted Database right Oxford University Press (maker) Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland First published 2011 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer British Library Cataloguing in Publication Data Data available Library of Congress Cataloging in Publication Data Data available Typeset by SPI Publisher Services, Pondicherry, India Printed in Great Britain on acid-free paper by CPI Group (UK) Ltd, Croydon, CR0 4YY ISBN 978–0–19–969680–2 13579108642 www.ebook777.com Free ebooks ==> www.ebook777.com Contents Preface x List of Contributors xii List of Abbreviations xiii 1. Testamentary Formalities in Roman Law 1 Thomas Ru¨fner I. Introduction 2 II. Archaic and pre-classical law 3 III. Classical law 5 IV. Post-classical law 18 V. Conclusion 25 2. Testamentary Formalities in Early Modern Europe 27 Nils Jansen I. Introduction 27 II. Wills and codicils 33 III. The forms of will 35 IV. Internal formalities 46 V. Conclusion 49 3. Testamentary Formalities in France and Belgium 51 Walter Pintens I. Introduction 52 II. Historical development 53 III. The modern law 55 IV. Holograph wills 57 V. Public wills 62 VI. Secret wills 64 VII. International wills 65 VIII. Registration 68 IX. Procedure after death 69 X. Conclusion 70 4. Testamentary Formalities in Spain 71 Sergio Ca´mara Lapuente I. Introduction 72 II. Historical background 73 III. The modern law 77 IV. Open wills 79 Free ebooks ==> www.ebook777.com vi Contents V. Closed wills 82 VI. Holograph wills 83 VII. Special wills 85 VIII. Shared features 86 IX. Internal formalities 90 X. A shift from formalism 91 XI. Concluding remarks 92 XII. Appendix: the laws of the Autonomous Communities 93 5. Testamentary Formalities in Latin America with particular reference to Brazil 96 Jan Peter Schmidt I. The Latin American background 97 II. Wills and will-making 98 III. Public wills 101 IV. Sealed wills 104 V. Private wills 105 VI. The fate of the holograph will 108 VII. Extraordinary wills 110 VIII. Further aspects 114 IX. Court practice and the flight from formalism 117 X. Concluding remarks 119 6. Testamentary Formalities in Italy 120 Alexandra Braun I. Historical introduction 121 II. Wills and will-substitutes 122 III. Holograph wills 126 IV. Notarial wills 130 V. Special wills 134 VI. International wills 136 VII. Evaluation 137 VIII. Defects of form 138 IX. Conclusion 140 7. Testamentary Formalities in the Netherlands 142 Wilbert D Kolkman I. Historical overview 143 II. Types of will 147 III. Evidence 161 IV. Special features of testamentary formalities 164 V. Adherence to formalities 170 VI. Concluding remarks 173 8. Testamentary Formalities in Germany 175 Reinhard Zimmermann I. Introduction 176 www.ebook777.com Free ebooks ==> www.ebook777.com Contents vii II. Private wills in nineteenth-century Germany 177 III. Holograph wills: principle and exceptions 180 IV. The battle over holograph wills: travaux pre´paratoires of the BGB 182 V. The holograph will and the courts (1900–35) 187 VI. Another battle over holograph wills 193 VII. Holograph wills today 197 VIII. Public wills 205 IX. Extraordinary wills 212 X. The German experience: a general assessment 218 9. Testamentary Formalities in Austria 221 Christiane C Wendehorst I. Relevant instruments and their practical significance 223 II. Historical development 228 III. Modern doctrine and court practice 237 IV. Current debates and plans for reform 251 V. Summary 253 10. Testamentary Formalities in Hungary 254 Lajos Ve´ka´s I. Introduction 255 II. Common requirements for wills 257 III. Private wills 258 IV. Public wills 265 V. Oral wills for emergency situations 265 VI. Legal consequences of formal mistakes 267 VII. Summary: relaxation of testamentary formalities 268 11. Testamentary Formalities in Poland 270 Fryderyk Zoll I. Historical development 270 II. The modern law 272 III. Holograph wills 274 IV. Notarial wills 277 V. Allograph wills 278 VI. Emergency wills 279 VII. Recodification 281 12. Testamentary Formalities in Islamic Law and their Reception in the Modern Laws of Islamic Countries 282 Nadjma Yassari I. Introduction 282 II. Classical Islamic law 284 III. Modern laws 295 IV. Conclusion 303 Free ebooks ==> www.ebook777.com viii Contents 13. Testamentary Formalities in England and Wales 305 Roger Kerridge I. Introduction 306 II. Formal wills: a history 307 III. The Wills Act 1837 312 IV. Incorporation by reference 316 V. Wills statistics 316 VI. Administration of estates 317 VII. Preparation and registration of wills 318 VIII. Forgery 321 IX. Nuncupative wills 322 X. Holograph wills 325 XI. Alterations 325 XII. Reform 326 14. Testamentary Formalities in Australia and New Zealand 329 Nicola Peart I. Introduction 330 II. Historical overview 333 III. Wills of indigenous peoples 336 IV. Special wills 337 V. The current law 339 VI. Power to dispense with testamentary formalities 349 VII. Conclusion 355 15. Testamentary Formalities in the United States of America 357 Ronald J Scalise Jr I. Introduction 358 II. Testamentary formalities 360 III. Incorporation by reference and alterations 376 IV. Conclusion 379 16. Testamentary Formalities in South Africa 381 Marius J de Waal I. Introduction 382 II. Historical background 384 III. The scope of the Wills Act 385 IV. The essential formalities 387 V. Procedure after death 395 VI. Condonation 395 VII. Amendment 401 VIII. Concluding remarks 402 17. Testamentary Formalities in Scotland 404 Kenneth G C Reid I. Conveyances and testaments 405 II. Seals, signatures, and witnesses 412 www.ebook777.com Free ebooks ==> www.ebook777.com Contents ix III. The modern law 419 IV. Form and formalism 429 18. Testamentary Formalities in Historical and Comparative Perspective 432 Kenneth G C Reid, Marius J de Waal, and Reinhard Zimmermann I. Wills and will-making 433 II. Holograph wills 437 III. Witnessed wills 444 IV. Public wills 448 V. Special wills 451 VI. Shared features 455 VII. The flight from formalities 462 VIII. Some conclusions 468 Index 473 Free ebooks ==> www.ebook777.com Preface The law of succession is out of fashion. Neglected, often, at a national level, it has been neglected still more as a subject for comparative study. Yet it is one of the most interesting, and certainly one of the most practically important, areas of private law. In 2007 we assembled and edited a collection of essays under the title Exploring the Law of Succession: Studies National, Historical and Comparative (Edinburgh University Press). Encouraged by the reception of that book, we have now embarked on a long-term programme to explore selected topics in the law of succession from a historical and comparative perspective. This volume is thus the first in a projected series on Comparative Succession Law. In this book we consider the formalities which the law imposes for testamentary disposals of property. Our presupposition is that every system has as its point of departure the principle of freedom of testation; in other words, a person has the freedom to determine the destiny of his or her assets. But for that to be accomplished, a legal instrument or instruments must be available so that assets can be passed on to the chosen beneficiaries. What, we ask, are the will-types available in different legal systems? How widely are they used? What are the advantages and disadvantages of each? How can requirements of form be explained and justified? Where did the law come from and how did it develop? And what might the future hold? It has been necessary to be selective as to jurisdictions, and we have chosen to focus on Europe, and on countries which have been influenced by the European experi- ence. Thus, in addition to giving a detailed treatment of the law in Austria, Belgium, England and Wales, France, Germany, Hungary, Italy, the Netherlands, Poland, and Spain, the book also explores legal developments in Australia, New Zealand, the United States of America, and in some of the countries of Latin America, with a particular emphasis on Brazil. Two of the mixed jurisdictions – Scotland and South Africa – are included for their insights in an area of law where the division between the common law and civil law seems particularly firmly entrenched.