Comparative Succession Law Volume I:

Launching a major new research project examining the principles of succession law in comparative perspective, this book discusses the formalities which the law imposes in order for a person to make a testamentary disposal of property. Among the questions considered are the following. How are wills made? What precisely are the rules - as to the signature of the testator, the use of witnesses, the need for a notary public or lawyer, and so on? Is there is a choice of will-type and, ifso, which type is used most often and what are the advantages and disadvantages of each? How common is will-making or do most people die intestate? What happens if formalities are not observed? How can requirements of form be explained and justified? How did the law develop historically, what is thestate of the law today, and what are the prospects for the future?The focus is on Europe, and on countries which have been influenced by the European experience. 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 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. It also includes chapters on two of the mixedjurisdictions - Scotland and South Africa - and on Islamic Law. The book opens with chapters on Roman law and on the early modern law in Europe, thus setting the historical scene as well as anticipating and complementing the accounts of national history which appear in subsequent chapters; and it concludes withan assessment of the overall development of the law in the countries surveyed, and with some wider reflections on the nature and purpose of testamentary formalities.

A qualified solicitor, Kenneth Reid has taught at the University of Edinburgh since 1980. He was appointed to the Chair of Property Law in 1994 and to the Chair of Scots Law in 2008. From 1995 to 2005 he served as a Scottish Law Commissioner, where he was responsible for a major programme of reform of land law, which was implemented by legislation.

Marius de Waal is Professor of Private Law at the University of Stellenbosch. His main fields of interest are the law of succession and the law of trusts, on which he has written a number of textbooks, including co-authoring the the fifth edition of Honore's South African Law of Trusts (Juta 2002, with Edwin Cameron, Basil Wunsh and Peter Solomon).

Reinhard Zimmermann is a Director of the Max Planck Institute for Comparative and International Private Law in Hamburg and is Chairman of the Social Sciences, Arts, and Humanities Division of the Max Planck Society. He is the author of numerous books on comparative law and legal history, including The Law of Obligations (OUP, 1996) and The New German Law of Obligations (OUP, 2005).

Preface	p. x
List of Contributors	p. xii
List of Abbreviations	p. xiii
Testamentary Formalities in Roman Law	p. 1
troduction	p. 2
chaic and pre-classical law	p. 3
assical law	p. 5
st-classical law	p. 18
Conclusion	p. 25
Testamentary Formalities in Early Modern Europe	p. 27
Introduction	p. 27
Wills and codicils	p. 33
The forms of will	p. 35
Internal formalities	p. 46
Conclusion	p. 49
Testamentary Formalities in France and Belgium	p. 51
Introduction	p. 52
Historical development	p. 53
The modern law	p. 55
Holograph wills	p. 57
Public wills	p. 62
Secret wills	p. 64
International wills	p. 65
Registration	p. 68
Procedure after death	p. 69
Conclusion	p. 70
Testamentary Formalities in Spain	p. 71
Introduction	p. 72
Historical background	p. 73
The modern law	p. 77
Open wills	p. 79
Closed wills	p. 82
Holograph wills	p. 83
Special wills	p. 85
Shared features	p. 86
Internal formalities	p. 90
A shift from formalism	p. 91
Concluding remarks	p. 92
Appendix: the laws, of the Autonomous Communities	p. 93
Testamentary Formalities in Latin America with particular reference to Brazil	p. 96
The Latin American background	p. 97
Wills and will-making	p. 98
Public wills	p. 101
Sealed wills	p. 104
Private wills	p. 105
The fate of the holograph will	p. 108
Extraordinary wills	p. 110
Further aspects	p. 114
Court practice and the flight from formalism	p. 117
Concluding remarks	p. 119
Testamentary Formalities in Italy	p. 120
Historical introduction	p. 121
Wills and will-substitutes	p. 122
Holograph wills	p. 126
Notarial wills	p. 130
Special wills	p. 134
International wills	p. 136
Evaluation	p. 137
Defects of form	p. 138
Conclusion	p. 140
Testamentary Formalities in the Netherlands	p. 142
Historical overview	p. 143
Types of will	p. 147
Evidence	p. 161
Special features of testamentary formalities	p. 164
Adherence to formalities	p. 170
Concluding remarks	p. 173
Testamentary Formalities in Germany	p. 175
Introduction	p. 176
Private wills in nineteenth-century Germany	p. 177
Holograph wills: principle and exceptions	p. 180
The battle over holograph wills: travaux préparatoires of the BGB	p. 182
The holograph will and the courts (1900-35)	p. 187
Another battle over holograph wills	p. 193
Holograph wills today	p. 197
Public wills	p. 205
Extraordinary wills	p. 212
The German experience: a general assessment	p. 218
Testamentary Formalities in Austria	p. 221
Relevant instruments and their practical significance	p. 223
Historical development	p. 228
Modern doctrine and court practice	p. 237
Current debates and plans for reform	p. 251
Summary	p. 253
Testamentary Formalities in Hungary	p. 254
Introduction	p. 255
Common requirements for wills	p. 257
Private wills	p. 258
Public wills	p. 265
Oral wills for emergency situations	p. 265
rLegal consequences of formal mistakes	p. 267
Summary: relaxation of testamentary formalities	p. 268
Testamentary Formalities in Poland	p. 270
Historical development	p. 270
The modern law	p. 272
Holograph wills	p. 274
Notarial wills	p. 277
Allograph wills	p. 278
Emergency wills	p. 279
Recodification	p. 281
Testamentary Formalities in Islamic Law and their Reception in the Modern Laws of Islamic Countries	p. 282
Introduction	p. 282
Classical Islamic law	p. 284
Modern laws	p. 295
Conclusion	p. 303
Testamentary Formalities in England and Wales	p. 305
Introduction	p. 306
Formal wills: a history	p. 306
The Wills Act 1837	p. 312
Incorporation by reference	p. 316
Wills statistics	p. 317
Administration of estates	p. 318
Preparation and registration of wills	p. 321
Forgery	p. 318
Nuncupative wills	p. 321
Holograph wills	p. 322
Alterations	p. 325
Reform	p. 325
Testamentary Formalities in Australia and New Zealand	p. 322
Introduction	p. 330
Historical overview	p. 333
Wills of indigenous peoples	p. 336
Special wills	p. 337
The current law	p. 339
Power to dispense with testamentary formalities	p. 249
Conclusion	p. 349
Testamentary Formalities in the United States of America	p. 357
Introduction	p. 358
Testamentary formalities	p. 360
Incorporation by reference and alterations	p. 376
Conclusion	p. 379
Testamentary Formalities in South Africa	p. 381
Introduction	p. 382
Historical background	p. 384
The scope of the Wills Act	p. 385
The essential formalities	p. 387
Procedure after death	p. 395
Condonation	p. 395
Amendment	p. 401
Concluding remarks	p. 402
Testamentary Formalities in Scotland	p. 404
Conveyances and testaments	p. 405
Seals, signatures, and witnesses	p. 412
The modern law	p. 419
Form and formalism	p. 429
Testamentary Formalities in Historical and Comparative Perspective	p. 432
Wills and will-making	p. 433
Holograph wills	p. 437
Witnessed wills	p. 444
Public wills	p. 448
Special wills	p. 451
Shared features	p. 455
The flight from formalities	p. 462
Some conclusions	p. 468
Index	p. 473
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Comparative Succession Law Volume I: Testamentary Formalities

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Table of Contents

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