Thursday, September 6, 2012
Alexandra Braun (Faculty of Law, University of Oxford) has recently published an article entitled, Towards a Greater Autonomy for Testators and Heirs: Some Reflections on Recent Reforms in France, Belgium, and Italy, (2012) 3 Zeitschrift für Europäisches Privatrecht 461-483. The abstract from SSRN is provided below:
While in Germany, the use of contractual devices in the context of succession law is expressly admitted by law, legal systems belonging to the Romanistic legal family usually consider succession pacts, that is to say arrangements that concern a future inheritance, illegal. In fact, the Civil Codes of Belgium, the Netherlands, France, Italy and Spain contain provisions prohibiting succession pacts. At the same time, however, these Codes also allow for certain exceptions, the range of which leads one to question the very purpose of the ban. Recent reforms in some of these countries have challenged the ban on succession pacts even further, revealing a trend towards a ‘contractualisation’ of succession law. The article analyses the nature and rationale of three new contractual instruments that were recently introduced into the succession laws of France, Italy and Belgium. In doing so, it shows that, although they are inherently different, all three instruments effectively enable testators and their heirs to derogate from rules of forced heirship. This enhances their private autonomy, and also indirectly enhances the freedom of testation of the testator. The article further looks at the policy considerations behind the prohibition of succession pacts, and in particular the prohibition of pacta de non succedendo, both from an historical and a modern perspective. It attempts to show that not only can the traditional policy reasons used to justify the ban be overcome, but also that many of the risks facing the heir and his descendants are balanced by the advantages created by such pacts.