by Anatol Dutta
1. Concept, function and origin
‘Let’s talk of graves, of worms, and epitaphs; [m]ake dust our paper and with rainy eyes [w]rite sorrow on the bosom of the earth, [l]et’s choose executors and talk of wills’. The fact that Richard II (Act III, Scene 2) refers to the designation of an executor and to the making of a will in the same breath stresses the importance of a legal institution which was denoted by the draftsmen of the German Bürgerliches Gesetzbuch (BGB) as a ‘dark institution’ (dunkles Institut) which should be clarified by the legislator (Motive V p 236). From a comparative perspective, not only the concept of testamentary execution but also the delimitation from other institutions calls for clarification. Testamentary execution shall be restricted in the present context to the administration of an estate by a third person which is voluntarily established by the testator. Testamentary execution is, hence, to be distinguished from institutions which provide for a mandatory administration of the estate by a third person. It is not only English law which provides for such a mandatory administration of the estate by a personal representative even where the testator has not appointed a testamentary executor. Comparable provisions can be found in other legal systems. For example, according to Portuguese law, in case of more than one heir, the undivided estate is in the first instance administrated by a Cabeça-de-casal, an administrator who is appointed from among the heirs (Arts 2079 ff Código civil). Furthermore, some legal systems, regardless of a declaration of the testator, provide for a curatorship of the estate which —as with the French administration de la succession mandataire successoral désigné en justice (Arts 813‑1 ff Code civil) or the German Nachlassverwaltung or Nachlassinsolvenz (§§ 1975 ff BGB; §§ 315 ff InsO)—is to secure the settlement of debts and the protection of the estate and the heirs.
Testamentary execution serves different functions partly overlapping with the purposes of mandatory administration of the estate. First, testamentary execution can be established by the testator to ease the devolution of the estate, notably the division of the estate in case of more than one heir and the settlement of debts; thus, it is not the—possibly—inexperienced heir, but the executor who administers the estate. Most notably, however, the testator can secure by testamentary execution that his last will is enforced, especially if he has imposed conditions or legacies in favour of third persons upon the heirs; here the heirs are controlled by the testamentary executor. Furthermore, testamentary execution enables the testator to preserve his estate; the testator through the executor, rather than the heirs, decides on the administration of the estate and is able, by this tool, to perpetuate the estate, a function which may also be served by other institutions such as subsequent succession (succession, subsequent).
Testamentary execution has its roots in medieval law where it was promoted by clerical practice. The testamentary executor was to warrant the enforcement of legacies, especially those in favour of the church. However, early ancestors of testamentary execution can already be found in Roman law. Although testamentary execution was not known as an independent institution, its effects could be created by other means; the freedom to testate allowed the testator, for example, to appoint a trustee to implement his testamentary dispositions. Also in Germanic law—although, apparently, it did not recognize freedom of testation—the testator could under certain circumstances dispose of family property by transferring it to a Salmann, a trustee inter vivos, who after the death of the testator enforced the testator’s last will.
2. Establishing testamentary execution
Testamentary execution is, as a voluntary administration, normally established by testamentary disposition. English law is, therefore, remarkable for providing—in cases of intestacy—that parts of the estate are held by the personal representative as a trustee for certain statutory heirs even after the end of the mandatory administration itself (ss 46(1), 47(1) Administration of Estates Act 1925). The executor is designated in most cases by the testator. However, in order to favour the validity of the last will some succession laws contain default rules for cases where the testator has provided for testamentary execution but has failed to denote the person of the executor. In German law, for example, the testator can delegate the determination of the executor to a third person, to another executor, or to the court (§§ 2198 ff BGB)—an exception to the general principle that no power of appointment can be delegated to third persons in a will (§ 2065 BGB). The executor must in most legal systems fulfil certain conditions. Many succession laws explicitly exclude persons from being executors who are restricted in their capacity to contract or to administer their own property. It is a matter of course that no one can be forced to be an executor. Hence, in most legal systems testamentary execution requires that the executor accepts his office or, at least, that a certain period of time expires without the executor declining the office.
3. The position of the executor
The characteristic criterion for the different approaches to testamentary execution is the position of the executor. Less significant is the question whether—doctrinally—the executor is conceived to act as a trustee, as a representative of the testator, of the heirs or even of the estate, or as a bearer of a private office. What is decisive are the powers of the executor towards the heirs and the estate. The position of the executor in that respect is quite different in the European legal systems. However, a general tendency to strengthen the position of the executor can be observed.
The strongest position of the executor, at least from a formal perspective, can be found in systems where the executor becomes fiduciary owner of the estate. In English law, for example, the estate is transferred to the personal representative who holds the estate on trust; the personal representative can dispose of the estate (s 33(1) Administration of Estates Act 1925). The representative settles the debts of the estate and then transfers the surplus to the heirs. Hence, the heirs have the position which legatees hold in other legal systems; notably, they cannot dispose of the estate before the devolution of the estate but rather have an expectancy concerning the estate. In a comparable position is the executor in legal systems which, though not making the executor fiduciary owner of the estate, still furnish him during his term of office with far-reaching powers, thus approximating him to a fiduciary owner and leaving the heirs only a nudum ius. For example, in Germany, Greece, Italy, Latvia, the Netherlands, Portugal, Slovenia, Switzerland and Spain the executor—partly based on his statutory power, partly based on a special disposition of the testator or on a court order—can seize the assets, dispose of the estate and create liabilities for the estate. The strong position in those legal systems is also evidenced by the position of the executor in court litigation. The estate is, regularly, represented by the executor (eg §§ 2212 ff BGB; Arts 2025 ff Greek Civil Code; Art 704 Codice civile; Art 4:145(2) Burgerlijk Wetboek (BW)). The trustee-like position is, additionally, reflected in those systems by the position of the heir. Partly, the heir cannot dispose of the estate (see § 2211 BGB; Art 1947(2), 1961(2) Greek Civil Code; Art 4:144 (1) BW). The heir often can only claim from the executor those parts of the estate which are no longer necessary for the administration (§ 2217 BGB; Art 707 Codice civile; see also Art 623 f Latvian Civil Code). Also, personal creditors of the heirs are regularly prohibited from enforcing their claims by seizing the estate (§ 2214 BGB).
A rather weak position is given to the executor in legal systems which provide—even in case of a testamentary execution—for an additional mandatory administration of the estate. This applies especially to Austrian law. In Austria, after the death of the deceased the estate constitutes a dormant special fund which is transferred by an Einantwortung, a mandatory court procedure, to the heirs (§ 797 ABGB). The court in some cases appoints a special administrator, the Verlassenschaftskurator. Alongside this special administrative procedure a testamentary executor can only play a minor role. Hence, it is of no surprise that the Austrian testamentary executor (§ 816 ABGB) only has a limited and additional monitoring function without any special powers.
Deliberately weak is the position of the executor also in legal systems which are generally sceptical towards post mortem restrictions of the heirs imposed by the testator. As a consequence, in succession laws which have been influenced by the traditional succession law of the French Code civil, the powers of the executor are limited. The executor is empowered only to secure and take stock of the estate (in case of absent or minor heirs). He can sell movables (as far as necessary for the implementation of legacies), and he can monitor the enforcement of the last will (see Art 1031(1)–(4) Belgian and Luxembourg Code civil; Art 1031(1)–(4) old French Code civil). The testator can, at the most, strengthen the position of the exécuteur testamentaire by assigning the so-called saisine—the power to seize the estate—to the executor, limited, however, to movables, in order to enable him to fulfil legacies (Art 1026 old French Code civil; see also Art 1026 Belgian and Luxembourg Code civil). That power to seize the estate, though, is temporal as will be seen momentarily (see 4. below).
However, even in those sceptical legal systems tendencies strengthening the position of the executor are appearing on the horizon. In the new French succession law the powers of the exécuteur have been gently expanded. The testator can now empower the executor to sell immovables if no forced heirs exist (Art 1030-1 Code civil). Most noteworthy is, however, the newly introduced administration de la succession par un mandataire (Arts 812 ff Code civil). As a result, the testator can now transfer the administration of the estate to a third person (mandataire) by a notarized post mortem mandate if a serious interest in relation to the heirs or the estate is shown. That type of administration very much resembles a testamentary execution in countries in which the executor has the position of a trustee, or similar to a trustee. According to the new French succession law the heirs cannot easily revoke the mandat.
In most legal systems the rights and duties of the executor towards the heirs follow the model of the relation between a mandatee and a mandator. The executor can claim reimbursement of his expenses. Some legal systems grant reasonable remuneration (see § 2221 BGB; Art 2027 Greek Civil Code; Art 4:144(2) Burgerlijk Wetboek (BW); Arts 2079, 2333 Portuguese Código civil; Art 517(2) Swiss Civil Code); other legal systems do so only under certain circumstances (see Art 1033-1 French Code civil; Art 711 Codice civile; Art 628 Latvian Civil Code; Art 97(2) Slovenian Succession Act; Art 908 Spanish Código civil). The executor is liable for a breach of duty towards the heirs. Additionally, the executor is normally obliged to render account, at least after the termination of his office. In order to legitimate himself toward third parties in some legal systems the executor can obtain a certificate, akin to a certificate of inheritance (see § 2368 BGB; see also Art 819 Greek Civil Procedure Code). In other systems a notarized will, or a confirmation of the office by the court (eg a grant of probate), has comparable effects.
4. The duration of testamentary execution
Testamentary execution is conceived in most jurisdictions as a temporal situation. The execution terminates when the executor has fulfilled all his tasks—especially after implementing the last will—or when a period of time fixed by the testator has expired. However, some jurisdictions allow the testator to extend the execution over a longer period and to entrust the executor with the administration of the estate. In some legal systems such an administrative testamentary execution is simply an extension of the normal testamentary execution (eg § 2209 BGB). Other jurisdictions provide different legal tools for a long-term administration of the estate, eg in Dutch law the testamentair bewind (Art 4:153 ff BW) or under English common law the (testamentary) trust. However, most legal systems envisage time limitations for such administrative testamentary executions, particularly in order to avoid an undue perpetuity of the estate. In Germany, for example, the Dauertestamentsvollstreckung ceases 30 years after the death of the testator; however, the testator can determine that the execution is to be extended until the death of the heir or the executor, or another event occurring in the person of the heir or the executor (§ 2210, 1 and 2 BGB). Yet that extension terminates with the death of the last executor who was appointed within the 30-year period (BGHZ 174, 346).
In a similar way, perpetuities are restricted in the common law by the traditional rule against perpetuities which invalidates future interests unless they ‘vest, if at all, not later than twenty-one years after some life in being at the creation of the interest’ (John Chipman Gray) (see succession, subsequent). Other jurisdictions are even more restrictive. In legal systems influenced by the traditional French succession law, the saisine, the right to seize the estate (see 3. above), expires a year and a day after the death of the testator—and even before that date if the heirs redeem the saisine by payment of an appropriate sum of money (Arts 1026 ff old French Code civil; Arts 1026 ff Belgian and Luxembourg Code civil). According to the new French succession law, both testamentary execution and the newly introduced administration de la succession par un mandataire are limited, in principle, to a period of two years; they can, however, be extended by the court (Art 1032; Art 812‑1‑1(2) Code civil; see also Art 1031 Code civil). Also under Italian law a standard one-year period is allowed for the administration: afterwards the executor is only allowed to monitor the heirs (Art 703(3) Codice civile). The testamentary execution in Hungarian succession law has apparently no binding force on the heirs; the heirs are free to revoke the execution (§ 79(2) Hungarian Estate Procedure Order).
The office of the executor terminates—which has to be differentiated from the termination of the testamentary execution as such—with the death of the executor; in some jurisdictions the office also terminates if the executor loses his capacity to contract or to administrate his own property. Furthermore, in many jurisdictions the executor can resign from his office or can be dismissed for good cause.
5. International and European level
Particularly challenging is testamentary execution in cross-border cases. Often the powers of the executor abroad are unclear, eg, when collecting assets which are situated outside the country according to whose law the executor has been appointed. So far, these difficulties have not been tackled by a harmonization of substantive law or the pertinent conflict rules (see succession law (international)). Rather, the 1973 Hague Convention on the International Administration of the Estates of Deceased Persons—which is in force within Europe for the Czech Republic, Portugal and Slovakia—tries to facilitate the cross-border administration of estates by establishing a certificate for personal representatives. The certificate does not only provide information on the person of the representative, but also on his powers (Art 1(1)). The certificate is issued by the courts at the last habitual residence of the deceased (Art 2), those courts, however, applying their own substantive law (Art 3). The certificate is recognized in all contracting states (Arts 9 ff) and allows third parties to discharge liabilities or to acquire property in good faith (Arts 22 ff). A similar certificate has been proposed by Art 36 of the European Commission’s Proposal for a Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession (COM(2009) 154 final) (see succession law (international), certificate of inheritance).
Special substantive provisions on testamentary execution are missing, so far, in European Union law. However, Union law and especially the fundamental freedoms impact on the activities of executors in the European internal market. Testamentary executors can, in particular, invoke the freedom of services enunciated in Art 56 TFEU/49 EC. According to the decision of the ECJ in Hubbard it is a discrimination based on nationality if ‘a Member State requires security for costs to be given by a national of another Member State who, in his capacity as an executor, has brought an action before one of its courts, whilst its own nationals are not subject to such a requirement’ (ECJ Case C-20/1992 – Hubbard  ECR I-3777, para 14). The connection to succession law does not affect the applicability of the fundamental freedoms (ECJ Case C-20/1992 – Hubbard  ECR I-3777, paras 19 ff). Also with regard to secondary Union law, the ECJ had to decide on the position of testamentary executors. The Court, for example, ruled that for purposes of the European harmonization in the area of value added taxes the testamentary executor is not comparable to a lawyer and, hence, special tax exemptions for lawyers do not apply to executors (ECJ Case C-401/06 – Commission v Germany  ECR I-10609). That decision was based on the fact that ‘the executor does not represent the testator, but merely carries out his last wishes, remaining neutral vis-à-vis those who benefit from the execution of the will. Strictly speaking he does not defend the testator’s interests, but puts into effect wishes which have crystallised and which he interprets, whereas in a lawyer-client relationship, the lawyer’s task is to serve the best interests of his client, as a general rule in the context of a dispute where there are conflicting interests. It follows that the service of executing a will is of a specific nature which distinguishes it from the services principally and habitually carried out by a lawyer’ (ECJ Case C-401/06 – Commission v Germany  ECR I-10609, para 37).
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