Formal and Informal Testamentary Promises: A Historical and Comparative Perspective
Rabel Journal of Comparative and International Private Law (RabelsZ), Vol. 76, pp. 994-1021, 2012
Posted: 5 Nov 2012
Date Written: November 4, 2012
Since time immemorial people have made promises to leave something by will to another person. Quite often such testamentary promises are made in exchange for some type of service and thus relied upon by the promisee. But sometimes, the promise is not fulfilled. As a consequence, a clash arises between the need to protect the freedom of the testator to change his or her will and the need to safeguard the interests of those relying on the promise. Law-makers on both sides of the Channel have always struggled with the enforcement of testamentary promises, which represent an unsettled area of the law. This article compares German and English law in the area of formal and informal testamentary promises. It looks at how both legal systems regard promises to make wills, be they contractual or not, and compares the remedies they currently award to those who, in reliance on a promise or assurance, assist or provide a service for the testator. In doing so, it not only investigates the rationale and scope of §2302 BGB, and the reasons why German law does not enforce contracts to make wills, but also outlines potential difficulties in the ways in which legislatures and courts tackle especially informal testamentary promises both in Germany and in England.
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