From Max-EuP 2012

by Sebastian Herrler

1. Subject matter and purpose of last wills

In all European legal systems the testator enjoys great autonomy in determining his succession. The concept of freedom of testation is thus of fundamental importance. The right of near relatives and spouses to a compulsory portion (alternatively, forced heirship) is the only substantial restriction on freedom of testation. The power to determine one’s succession has existed since Roman times, when it was a social obligation of each good pater familias of the upper class to designate an heir. After the decline of the Roman Empire, however, strict rules concerning the hereditary rights of near relatives were recognized in, inter alia, the Kingdom of the Franks, from which a testator could not deviate. Later, this rigid concept of succession was incrementally abolished, not least because of the influence of the church. This was initially done by creating the so-called Seelteil, a part of the estate which the testator could give to the church for the benefit of his soul. Ultimately, however, the concept of freedom of testation was reconstituted, and since traditional family structures in recent times have been and remain in a state of dissolution, the significance of testamentary dispositions is continually increasing. Intestate succession (succession upon death) based on and legitimated by close family ties, is often no longer regarded as appropriate. Given the fact that a last will, by definition, creates legal effects only after the death of the testator and that the latter cannot therefore be asked about the meaning of the words used, the following aspects are of vital importance:

(a) The significance of the act of making a will has to be made clear to the testator; at the same time his animus testandi has to be documented.

(b) It has to be ensured that the wishes of the testator can be ascertained with sufficient certainty.

(c) Finally, falsification of the testator’s will must be prevented as far as possible.

The existing formal requirements concerning last wills take account of these concerns. Furthermore, they determine both the interpretation of the last will and the treatment of mistakes by the testator in the process of making his testamentary dispositions. In view of the existence of private wills, the form requirements for wills can hardly be seen to ensure (d) that the testator receives legal advice before making his will.

2. Tendencies of legal development

In all European legal systems the statutory provisions concerning last wills are rather static. Only very occasionally have the existing rules been modified—to some extent by the legislature, but primarily by the courts. Overall, this development is characterized by an increasing emphasis on the testator’s intention. This already applies to antiquity. Nowadays, the formal requirements for testamentary dispositions only refer to the way in which a last will has to be drawn up. However, pre-classical Roman law placed a greater emphasis on the formal requirements, in that they also affected the content of testamentary dispositions. Legal consequence could only take effect from the testator’s having used specific words. Form and content of last wills were indissolubly intertwined, thus providing for maximum legal certainty at the expense of regard for the testator’s real intention.

Today, the liberalizing tendency, based on a shift of emphasis towards the testator’s intention, is apparent in a more lenient approach towards the existing form requirements. For example, a missing date no longer invalidates a last will, or at least does not automatically invalidate it, in most European states. When it comes to the infringement of a formal requirement which does not have a substantive significance or does not defeat its purpose there is an increasing tendency to desist from any sanction in order to give effect to the testator’s intention. This development is also reflected by the current methods of interpreting a last will. Unlike in the past, the interpretation does not so much focus on the wording of the will but on the testator’s intention, which has to be determined by considering all relevant circumstances even if these do not emerge from the last will. Some European legal systems even permit the courts to correct erroneous last wills in order to give effect to the (assumed) wishes of the testator.

3. Key issues in comparative perspective

a) Form

Originally, the formal requirements for testamentary dispositions expressed the solemnity of such an important act. Nowadays, the formal requirements no longer exist for their own sake, but rather reflect the above-mentioned practical purposes (provability, protection against falsification, delimitation vis-à-vis preliminary considerations, and consultation). Most modern European legal systems recognize both public wills, typically drawn up by notaries, and private wills. It is only in the United Kingdom and Ireland as well as in Finland, Norway and Sweden that last wills can exclusively be made as private wills, as the Latin notarial system is unknown in these countries (notary public). The Netherlands, in turn, do not recognize the private will as a generally applicable form of a testamentary disposition because of (a) the aspect of legal certainty (especially the risk of falsification) which can only be ensured by a public will; furthermore, (b) emphasis is placed on the advisory function of the form requirements which is confined to public wills. Consultation with a notary aims at determining the real intention of the testator and at putting it down in the document in an unambiguous way. Despite the appreciable advantages of the public will and the corresponding difficulties with private wills, especially in determining and thus giving effect to the wishes of the testator, which often result in civil proceedings, there is currently no inclination to discourage the making of private wills in favour of public wills or perhaps even to abolish private wills as a generally applicable form of testamentary dispositions. This is probably due to the greater flexibility of private wills.

The form requirements relating to private wills differ among the various European states. Basically, there are two main types of private wills. While the holograph will, which exists, inter alia, in Germany, France, Italy and Poland, requires the testator to draw up the entire document and sign it in his own hand, the allograph will, which exists, inter alia, in the United Kingdom, Denmark, Latvia and Sweden, only requires the testator to sign a document that does not have to be written by himself in the presence of a certain number of witnesses. Some states make both types of private will available (inter alia, Austria, the Czech Republic and Hungary). (a) Compared to the holograph will, the allograph form facilitates falsifications. (b) Moreover, there is a higher risk that the testamentary dispositions do not reflect the testator’s own free will. Legal systems providing for the allograph will require the presence of witnesses as a condition for the last will’s validity to counter these risks. The dangers inherent in the allograph will are confirmed by the fact that countries that permit both the holograph and allograph will require the participation of witnesses only for the latter. Austrian law, which generally places great emphasis on the intention of the testator, even recognized oral wills made in the presence of witnesses as a main type of private wills, although this jeopardized the purpose of the formal requirements considerably. For private wills executed after 31 December 2004, the oral will was abolished in Austrian law due to numerous malpractices.

In some legal systems, infringements of the form requirements cause ipso iure invalidity of the wills (inter alia, Germany, France and the Czech Republic). Other legal systems consider the will as valid, unless it is, within a certain period of time, contested because of the formal defect (inter alia, Sweden and Slovenia). Sometimes, in this respect, there is a distinction between the different form requirements. In Italy, for example, infringements of form requirements in principle result in the invalidity of the will ipso iure, the exception being a missing date which does not have legal consequences unless an action for declaration of nullity is brought. In view of the fact that the form requirements for wills aim at protecting the interests of the testator and also serve the public interest, the automatic invalidity is preferable.

b) Testamentary capacity

Drawing up a last will requires that the testator is mentally capable of doing so (testamentary capacity). Accordingly, in order to guarantee an autonomous decision, he has to understand the nature of the last will and its effects. Given the rationale of testamentary capacity, the execution of a last will requires, in all European legal systems, (a) a certain minimum age to ensure sufficient mental maturity and (b) the absence of mental insufficiencies. Even in Roman times already, reaching the age of puberty was a prerequisite for the capacity to make a will.

Most European states grant unlimited testamentary capacity from the age of 18. In some states the necessary age for making a will is decreased by a preceding marriage (inter alia, Sweden and the Czech Republic). Almost all legal systems provide for a limited testamentary capacity (usually from the age of 16, sometimes also 14 or 15) which exists before a person reaches the age of unlimited capacity. Basically, there are two types of limitations in the case of a minor with limited capacity to make a will. On the one hand, not all testamentary forms are available. Because he has not yet completed the process of reaching mental maturity, a testator with limited testamentary capacity is obliged to use the public form of will, thus ensuring that he is properly advised. Consequently, the private will is excluded as a testamentary form (see, inter alia, the Czech Republic, Germany and Spain). On the other hand, especially in Scandinavian law and in the sphere of influence of the Code civil, the limited testamentary capacity is reflected in the admissible content of wills. Thus, a person with limited testamentary capacity may only dispose of half of his estate (eg France and Belgium) or only over those assets over which he would also be allowed to dispose inter vivos (eg Denmark and Finland). With respect to the legal consequences arising from a testator’s lack of testamentary capacity, the above-mentioned principles concerning infringements of form requirements apply. In some legal systems, the will is invalid ipso iure, in others the will must be contested within a prescribed period of time.

c) Interpretation

Nowadays, the aim of interpretation is primarily to give effect to the wishes of the testator at the time when he drew up his will (subjective approach). Giving effect to the testator’s (ex- pressed) intention is the guiding principle of interpretation in all European legal systems, except for the restrictions mentioned below. Yet, this is by no means self-evident. As late as the 19th century, it was common practice to focus on the ordinary meaning of the words used by the testator (literal approach). In the interests of legal certainty a specific meaning was attached to specific terms, regardless of whether the testator had understood the words in that sense or not. The so-called plain-meaning-rule (Eindeutigkeitsregel) was characteristic of the literal approach: there is no need for interpretation in case of an unambiguous wording. Beginning at the end of the 19th century, the subjective approach gained more and more adherents in continental Europe. In England, however, it was not before the decision of the House of Lords in Perrin v Morgan [1943] AC 399 that it prevailed. The legal developments in the 19th and the first half of the 20th centuries thus correspond to the evolution of Roman law. In pre-classical times the interpretation of wills focused on the literal, ordinary meaning of the words used. The causa Curiana of 92 BC (Cicero, de oratore I, 180) marked the turning point towards a method of interpretation focusing on the meaning intended by the testator.

In most European legal systems, however, the testator’s intention will not necessarily prevail in all cases. This is due to the fact that the requirement of legal certainty, underpinning the form requirement, has to be taken into account. At the same time, a balance has to be found between what may be termed positive and negative freedom of testation. For while effect has to be given to the expressed wishes of the testator, ie to his (presumed) intention, the testator must also be protected against falsification of his testamentary dispositions. In the various European legal systems different approaches exist in order to reconcile emphasis on the testator’s intention with the requirements of legal certainty. In some legal systems, the first step is to determine the testator’s ‘real’ intention by considering all relevant circumstances, even if they are not reflected in the will, eg oral statements made by the testator concerning his dispositions. In a second step, however, only those wishes of the testator are recognized as binding which have at least been intimated, or hinted at, in the duly executed document (eg Germany, Greece, Austria and Switzerland). Contrary to this substantive approach, other European legal systems pursue a procedural approach, according to which the admission of evidence outside of the four corners of the will (so-called extrinsic evidence) is restricted (United Kingdom and Ireland). Yet, in recent years, there has been a considerable liberalization concerning the admissibility of extrinsic evidence (see s 21 Administration of Justice Act 1982). The remaining restrictions only concern oral statements made by the testator vis-à-vis third parties; these can only be taken into account under exceptional circumstances. Apart from that, all evidence outside of the will is admissible.

However, in some countries the interpretation solely aims at establishing the ‘real’ intention of the testator at the time when he drew up his will. In particular, mistakes (as to the words used or as to their legal effect) are to be corrected in the process of interpretation as long as the testator’s real intention can be determined (purely subjective approach, used, inter alia, in Denmark, Finland and Sweden). A similar approach is pursued by the procedural institution of rectification, established in English law by s 20 Administration of Justice Act 1982. This allows for a correction of the last will’s content in case of an inadvertent mistake or clerical error. Even in those legal systems which have not adopted a purely subjective approach, and thus do not always give effect to the ‘real’ intention of the testator, there is widespread agreement that the testator’s particular use of language, ie the sense in which he habitually used certain words, is decisive for the interpretation of his will.

In addition to the determination of the testator’s actual intention, interpretation also aims at filling gaps in a will. If the testamentary dispositions do not provide for a particular point which has become relevant, this gap is to be filled by way of what is known as supplementary interpretation (ergänzende Testamentsauslegung). Supplementary interpretation aims to establish what the testator would have intended if he had considered that particular point. The actual testamentary dispositions form the point of departure for this process. Inevitably the judge will be influenced by his own value judgments and preconceptions. In order to prevent this, supplementary interpretation is given no scope (eg in the United Kingdom) or only limited scope (eg in France) in some European legal systems. Instead, these systems primarily apply general rules of construction established by legislation or by the courts. Switzerland, having previously rejected supplementary interpretation, now favours it over its previous, more generalizing approach. Given the increasing significance of the testator’s intention in the historical development of interpreting last wills, a method of gap-filling by closely adhering to the expressed testamentary wishes does indeed seem preferable.

d) Mistake/avoidance

Closely related to the method of interpretation is the question as to whether there are mechanisms to correct possible mistakes of the testator. If the mistake can be remedied by way of interpretation, there is no need to avoid the will. Only legal systems where the process of interpretation can lead to a result that is contrary to the real intention of the testator (due to the requirement that the real intention must have been ‘hinted at’ in the document constituting the will, or due to the restricted admissibility of extrinsic evidence) have to answer the question as to whether and, if so, under which circumstances an erroneous testamentary disposition can be corrected or avoided. Generally, all deficiencies of intention on the part of the testator will allow the avoidance of a will, as—unlike with declarations of intention addressed to another person—there are no interests of third parties which need to be considered. Only in the United Kingdom are mistakes in drawing up a will irrelevant (apart from the admissibility of extrinsic evidence and the availability of rectification (see above c)). The assertion of a mistake is either made by informal declaration (Germany) or by bringing an action (inter alia, France and Austria); the latter mechanism serves the purposes of legal certainty.

An error in motive is, in principle, also a relevant mistake. In this respect, however, there is a risk that the avoidance of wills becomes the rule rather than the exception, as the motives for drawing up a will are often complex and therefore highly prone to error. To counter this risk, some European legal systems only allow avoidance for an error in motive, if the erroneous motive was the only cause for the testamentary disposition at hand (Italy and Austria). Other legal systems (eg Greece) require an indication of the mistaken motive in the testamentary document itself. In Bulgaria, these two criteria are combined. Moreover, in Austria an error in motive only renders the will voidable if the ensuing result would reflect the wishes of the testator better than giving recognition to the erroneous will. That may be a useful approach, but no such general principle for all types of mistakes exists in any European legal system. Insofar, therefore, greater importance is attached to legal certainty than to giving effect to the intention of the testator. If a disposition contained in a will has been avoided, it is substituted either by a previous disposition or, as far as there is no previous disposition, by the rules of intestate succession.

e) Testamentary burden

Unlike a legacy, the testamentary burden obliges the beneficiary of a will to do something without necessarily granting the beneficiary of that burden a claim to enforce that obligation. The testator thus intends to influence the behaviour of the beneficiary. As the person who benefits from a testamentary burden does not automatically have a claim, the question of who is entitled to demand the execution of the testamentary burden is of great significance. In some legal systems the range of persons is very limited (eg Germany), whereas the majority of the legal systems give a right of action to all persons interested in the fulfilment of the testamentary burden (eg Finland, Italy, Sweden and Switzerland), thereby in fact blurring the borderline between legacy and burden.

4. Projects of harmonization

Currently, harmonization of the substantive law of succession and, thus, also the law of wills is not on the agenda in the European Union. There are, however, harmonization efforts specifically concerning form requirements relating to wills. According to the Hague Convention on the Conflicts of Laws relating to the Form of Testamentary Dispositions of 5 October 1961, which has been ratified in most EU states, the testator can choose, inter alia, between the form requirements existing in the law of the state where the last will is signed, in the law of the nationality of the testator, or in the law of the place in which the testator had his domicile or habitual residence (either at the time when he made the disposition, or at the time of his death). Another international treaty, the Washington Convention providing a Uniform Law on the Form of an International Will of 26 October 1973, has not gained comparable recognition.

A further harmonization of the conflict of laws provisions regarding the applicable substantive law of succession has been initiated by the European Commission in its green paper on succession and wills published on 1 March 2005. On 14 October 2009, the Commission published a 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, according to which the law applicable to the succession as a whole is to be that of the state in which the deceased had his habitual residence at the time of his death (Art 16), thereby increasing the incidence of application of foreign succession laws by the national courts. However, the proposal grants the testator the right to choose the law of the state whose nationality he possesses (Art 17(1)). Nonetheless, there are reservations against this conflict rule, especially with regard to the compulsory portion. These concerns can be remedied only by harmonizing the substantive laws of succession of the various Member States. Given the considerable differences in the European legal systems, however, a comprehensive harmonization seems hardly achievable in the near future. The harmonization of certain areas (such as form requirements and testamentary capacity) is more promising because of the extensive conformity already existing.


Deutsches Notarinstitut, Heinrich Dörner and Paul Lagarde (eds), ‘Etude de droit comparé sur les règles de conflits de juridictions et de conflits de lois relatives aux testaments et successions dans les Etats membres de l’Union Européenne, 1892002/8112002’ <http://ec.europa.eu/civiljustice/publications/docs/testaments_successions_fr.pdf>; Roger Kerridge and Julian Rivers, ‘The Construction of Wills’ (2000) 116 LQR 287; Rembert Süß (ed), Erbrecht in Europa (2nd edn, 2008); Roger Kerridge, Parry and Kerridge: The Law of Succession (12th edn, 2009); Kenneth Reid, Marius de Waal, Reinhard Zimmermann (eds), Testamentary Formalities, 2011.

Retrieved from Wills – Max-EuP 2012 on 14 April 2024.

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