Vous êtes sur la page 1sur 16

LAW AND

TRANSITION
Collection of papers

Editors
Bojan Milisavljević
Tatjana Jevremović Petrović
Miloš Živković

Belgrade, 2017.
LAW AND TRANSITION
Collection of papers

Editors
Prof. Dr. Bojan Milisavljević,
Prof. Dr. Tatjana Jevremović Petrović,
Prof. Dr. Miloš Živković

Publisher
University of Belgrade – Faculty of Law
Publishing and Information Center

For the Publisher


Prof. Dr. Sima Avramović, Dean

General Editor
Prof. Dr. Dragan M. Mitrović

Reviewers
Dr. Dr. h.c. Christa Jessel-Holst,
Max-Planck-Institut für ausländisches und internationales Privatrecht, Hamburg
Prof. Dr. Mirko Vasiljević, Faculty of law University of Belgrade
Prof. Dr. Tatjana Josipović, Faculty of Law, University of Zagreb
Prof. Dr. Dragor Hiber, Faculty of law University of Belgrade

Papers authored by academic staff of the Faculty of Law University of Belgrade


were created as a part of the Serbia’s Identity Transformation project carried out
at the Faculty of Law University of Belgrade.
Printing of this Publication was funded by the Ministry of Education, Science and
Technological Development of the Republic of Serbia.

© University of Belgrade – Faculty of Law, 2017


All rights reserved. No part of this book may be reproduced in any form by any electronic or
mechanical means (including photocopying, recording or information storage and retrieval) without
permission in writing from the publisher.
www.ius.bg.ac.rs
UDK 347.672(497.11)

Miloš Vukotić, LLM*

IMPORTANCE OF WILL EXECUTION FORMALITIES


IN SERBIAN LAW
This article deals with requirements of testamentary form and their application in
judicial practice in Serbia. In contrast to the prevailing tendency of reducing formalism
in the law of wills, Serbian courts require strict compliance with all will execution
formalities. The main thesis of this article is that strict compliance with formalities
should be abandoned in favour of substantial compliance and that some statutory
formalities should be completely removed. The author discusses the general tendency
of reducing formalism in a comparative perspective, the functions of will execution
formalities and the formal requirements under Serbian law and their application in
judicial practice.
Key words: Wills. – Form. – Substantial Compliance. – Succession Law. – Serbian Law.

1. INTRODUCTION
In order to be legally valid, a will must be made with testamentary intent by a
person with testamentary capacity and expressed in the form prescribed by the law.
Of course, testamentary dispositions must also be lawful and compatible with pub-
lic policy. This article deals with requirements of formal validity i.e. with testamen-
tary form. The main aim of the article is to examine requirements of testamentary
form under Serbian law and to suggest possible improvements with regard to statu-
tory provisions on form and their application in judicial practice. The main thesis
of the article is that Serbian law requires some unnecessary formalities and that the
courts apply formal requirements too strictly. Therefore, requirements of testamen-
tary form should be simplified and applied more leniently.
A glance at testamentary formalities from a comparative perspective will show
that testamentary formalities are secondary to testamentary intent and freedom of
testation. Contemporary succession law is characterized by a liberal approach to for-
malities which gives precedence to the intent of the testator, disregarding harmless
* Assistant Lecturer, University of Belgrade Faculty of Law, vukotic@ius.bg.ac.rs.
474 Miloš Vukotić

formal deficiencies.1 Thus, the requirement that a handwritten will must be dated
is interpreted leniently in French and Belgian law.2 The date can be proven by ref-
erence to the contents of the will or extrinsic factors, and even if the date of execu-
tion cannot be ascertained, the will is void only if there is doubt in the testator’s
capacity or if the temporal order of competing wills cannot be determined.3
German law offers the same picture of gradual reduction of formalism. When
the German Civil Code was enacted it contained somewhat strict formal require-
ments for holograph wills4 and these requirements were usually interpreted
strictly.5 However, in 1938 the formalities were limited to handwriting and signa-
ture.6 Today, even these basic requirements are applied leniently, in the spirit of
favor testamenti.7 For instance, in one case the Federal Supreme Court accepted a
will that was written by hand, but as a carbon copy.8 More importantly, German
courts are prepared to accept holograph wills that are not signed at the bottom of
the text.9 Application of formal requirements in the spirit of favor testamenti has
been strongly supported by German legal theory.10
The liberal approach towards testamentary formalities prevails also in common
law legal systems. English law remains the most conservative because the testator
must sign or acknowledge his signature in the presence of two witnesses (the wit-
nesses do not need to sign the will in presence of each other).11 However, the testa-
tor may sign the will with a mark and even someone else may sign instead of the
testator, but only in his presence and at his direction.12 Furthermore, it is not nec-
essary that the signature is at the end, it is only important that “it appears that the
testator intended by his signature to give effect to the will”.13 These formalities are

1 S. Herrler, “Wills”, The Max Planck Encyclopedia of European Private Law (eds. J. Basedow, K.
J. Hopt, R. Zimmermann with A. Stier), Vol. II, Max-Planck-Gesellschaft – Oxford University
Press, Oxford 2012, 1774.
2 W. Pintens, “Testamentary Formalities in France and Belgium”, Comparative Succession Law: Tes-
tamentary Formalities (eds. K. G. Creid, M. J. Dewall, R. Zimmermann), Vol. 1, Oxford Univer-
sity Press, Oxford 2011, 59–60.
3 Ibid.
4 In addition to handwriting and signature, indication of date and place of execution was mandatory.
5 R. Zimmermann, (2011), 187–189.
6 Ibid., 194–196.
7 Ibid., 198–202.
8 BGHZ 47, 68. Available at: https://www.jurion.de/urteile/bgh/1967–02–03/iii-zb-14_66, last vis-
ited 15 February 2017.
9 In one well-known case the German Supreme Court accepted a legacy which was introduced af-
ter, but above the signature on the third page of a folded A5 paper (the signature was on the sec-
ond page): BGH, NJW, 1974, 1083, available at: https://www.jurion.de/urteile/bgh/1974–03–20/
iv-zr-133_73, last visited 22 February 2017.
10 See: S. Grundmann, “Favor testamenti: Zu Formfreiheit und Formzwang bei privatschriftlichen
Testamenten”, Archiv für die civilistische Praxis 187/1987, 429–476.
11 R. Kerridge, “Testamentary Formalities in England and Wales”, Comparative Succession Law: Tes-
tamentary Formalities (eds. K. G. Creid, M. J. Dewall, R. Zimmermann), Vol. 1, Oxford Univer-
sity Press, Oxford 2011, 314–315.
12 Ibid.
13 Ibid.
Importance of Will Execution Formalities in Serbian Law 475

required by the Wills Act,14 which had a profound influence on testamentary form
in other common law legal systems.
In American law, where wills are regulated on state level, there is also consid-
erable relaxation of testamentary formalities.15 The Uniform Probate Code, which
is accepted in 18 states,16 contains very liberal requirements of form.17 Most im-
portantly, the execution of a witnessed will does not require the witnesses to be
present simultaneously, nor to sign the will in the presence of the testator (they
may sign within a reasonable time after witnessing).18 Furthermore, Uniform Pro-
bate Code prescribes no sanction for using interested witnesses.19 Unlike English
and Australian law, some American jurisdictions recognize holograph wills and
apply the requirements of this form leniently.20 The wills statute of Nevada explic-
itly allows even electronic wills.21 Apart from legislative reduction of formalities,
the courts employ a lenient and purposive approach to formal requirements. For
instance, the Tennessee Court of Appeals admitted a witnessed will that was signed
by a digitalized signature (the signature was computer-made and printed).22 The
importance of testamentary formalities is further compromised by the emergence
of the so-called ‘substantive compliance doctrine’ and ‘harmless error rule’, which
allows the court to admit a formally defective document to probate, if it is satisfied
that the document reflects the intention of the testator. Substantial compliance is
now dominant in the United States and the harmless error rule has been adopted
in the Uniform Probate Code, the Restatement (Third) of Property and also by
several states.23
Substantial compliance was first introduced in South Australia in 1975. Today,
Australia and New Zealand are the most liberal jurisdictions when it comes to will
formalities. The basic type of will is the witnessed will in the form derived from the

14 § 9 Wills Act (1837), available at: http://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/sec-


tion/9, last visited 16 February 2017. The Wills Act was amended only twice, but the original
provisions of 1837 have not been significantly changed. The current requirements date from the
latest revision in 1983. Cf. R. Kerridge, 312–313.
15 R. J. Scalise Jr., “Testamentary Formalities in the United States of America”, Comparative Suc-
cession Law: Testamentary Formalities (eds. K. G. Creid, M. J. Dewall, R. Zimmermann), Vol. 1,
Oxford University Press, Oxford 2011, passim.
16 Legal Information Institute, https://www.law.cornell.edu/uniform/probate, last visited 16 February 2017.
17 § 2–502 Uniform Probate Code (2010), available at: http://www.uniformlaws.org/Act.
aspx?title=Probate%20Code, last visited 16 February 2017.
18 Ibid; Cf. R. J. Scalise Jr., 368.
19 § 2–505 Uniform Probate Code (2010).
20 R. J. Scalise Jr., 370–373.
21 Nevada Revised Statutes § 133.085, available at: http://www.leg.state.nv.us/nrs/nrs-133.
html#NRS133Sec085, last visited 16 February 2017. The requirements of validity of an electronic
will are strict, a simple word document would not suffice. An electronic will must contain an
indication of date, an electronic signature, at least one characteristic of the testator which allows
his identification and it must be made and stored in a way which prevents unauthorized copying
and which allows the original to be identified.
22 Taylor v Holt, 134 SW3d 830, available at: https://www.courtlistener.com/opinion/1405291/taylor-
v-holt/, last visited 16 February 2017.
23 R. J. Scalise Jr., 375.
476 Miloš Vukotić

English Wills Act.24 However, in both countries the courts have the power to dis-
pense with formal requirements when a formally deficient document contains the
genuine intention of the testator, which means that formal defects are not necessar-
ily fatal for the validity of a will.25 The dispensing power, which was first introduced
in South Australia, is now accepted by all Australian states and also, with some dif-
ferences, in New Zealand.26
The emergence of the substantial compliance doctrine and the dispensing pow-
er is the most significant development in the law of wills in recent history. Sub-
stantial compliance stands in contrast to strict compliance, which was traditionally
required.27 Under the traditional approach, any formal defect invalidates the will.28
However, according to substantial compliance, a will may be admitted to probate
even if it does not satisfy all formal requirements, if there is evidence that the will is
authentic and if the purpose of formalities has not been defeated (if the will repre-
sents the true intent of the testator). Substantial compliance is more than reduction
of formalities or their liberal interpretation – it allows formally deficient documents
to be admitted as wills.
In the following part we will discuss the functions of testamentary formalities
and then turn to testamentary formalities in Serbian law, with special emphasis on
their application in court decisions. The aim is to show that strict compliance is nei-
ther necessary nor useful for achieving the aims of testamentary law.

2. FORM AND FREEDOM OF TESTATION


Freedom of testation is a fundamental element of the law of succession. It means
that individuals are free, within legal boundaries, to make mortis causa dispositions
as they see fit. This principle stems from the right to private property, especially from
the right of the owner to freely dispose of his property. Freedom of testation may also
guarantee an equitable distribution of property, under the assumption that the testa-
tor is best acquainted with his own personal and family relationships.29 However,
apart from the forced share, the law does not provide any mechanism for correcting
a will that “unjustly” distributes testator’s property. By allowing freedom of testation,
the law relies on the testator’s sense of justice.30 Therefore, the law only guarantees
the right to property, or, put differently, the principle of private autonomy.
Requirements of form may be seen as a limit to the freedom of testation, but
also as a guarantee of that freedom. Freedom of testation has two aspects: (1) the
law should respect the expressed wishes of the testator, (2) but also offer protection

24 N. Peart, “Testamentary Formalities in Australia and New Zealand”, Comparative Succession Law:
Testamentary Formalities (eds. K. G. Creid, M. J. Dewall, R. Zimmermann), Vol. 1, Oxford Uni-
versity Press, Oxford 2011, 341–345.
25 Ibid., 331.
26 Ibid., 349–351.
27 K. R. Guzman, “Intents and Purposes”, Kansas Law Review 60/2011, 312.
28 R. J. Scalise Jr., 374.
29 D. B. Đurđević, Institucije naslednog prava, Pravni fakultet Univerziteta u Beogradu, Beograd
2015, 33.
30 D. Leipold, Erbrecht, Mohr Siebeck, Tübingen 2014, 25.
Importance of Will Execution Formalities in Serbian Law 477

against falsification of testamentary dispositions.31 When we consider will execu-


tion formalities, we should not contrast them with the freedom of testation, but
rather evaluate them in light of the freedom of testation. There is no direct conflict
between the principle of freedom of testation and formalism – formal requirements
are all meant to protect the true intent of the testator.32 The crucial question is the
following: how effective are formalities in protecting the intent of the testator?33

3. FUNCTIONS OF TESTAMENTARY FORM


The main purpose of testamentary form is to provide certainty with regard to the
contents of a will, which is especially important because a will is interpreted at a time
when its author can no longer clarify its meaning.34 Formal requirements serve the
freedom of testation in several different ways: they indicate that a certain expression
is final – that it was given with definite and final testamentary intent; they warn the
testator of the serious implications of making a will; they offer a protection against
falsification and thereby guarantee the authenticity of the testamentary document.35
In case of public wills, formal requirements also have the purpose of providing the
testator with legal advice on how best to effectuate his intention.36 The usefulness of
will execution formalities should be measured in view of these functions.
It is important to note that all purposes of testamentary formalities primarily
protect the testator. Taking into account that the interests of close family members
are protected by rules on forced shares and that potential intestate heirs have no
protected interest before the moment of death, the only interest that form require-
ments should protect is the expectation of the testator that his testamentary dispo-
sitions will be legally effective.37 Beneficiaries under a will also have no protected
interest until the moment of death because their acquisition is not final.38

3.1. Evidentiary function – content


The requirements of writing, signature and attestation are meant to provide evidence
of the testator’s intention.39 The evidentiary function has two aspects: form provides evi-
dence not only of the content of the will, but also of finality of testamentary intention.
31 S. Herrler, 1776.
32 Freedom of testation can be protected by more or less stringent requirements of form. For in-
stance, in Dutch law private wills must be submitted to a public notary, yet it cannot be said that
Dutch law does not respect freedom of testation. The degree of formal requirements depends
on the lawmaker’s decision on the most appropriate way of achieving effective freedom of testa-
tion. On testamentary forms in Dutch law see: W. D. Kolkman, “Testamentary Formalities in
the Netherlands”, Comparative Succession Law: Testamentary Formalities (eds. K. G. Creid, M. J.
Dewall, R. Zimmermann), Vol. 1, Oxford University Press, Oxford 2011, 153–156.
33 J. Lindgren, “Abolishing the Attestation Requirement for Wills”, North Carolina Law Review
68/1990, 544.
34 D. Leipold, 113.
35 Ibid.
36 S. Herrler, 1774–1775.
37 S. Grundmann, 443–444.
38 H. Brox, Erbrecht, Carl Heymanns Verlag, Köln 2003, 125.
39 A. G. Gulliver, C. J. Tilson, “Classification of Gratuitous Transfers”, The Yale Law Journal 51/1941, 6–9.
478 Miloš Vukotić

The ubiquitous requirement of writing guarantees that testator’s expressions


will be permanently preserved in their original form. This is the first and most ob-
vious function of testamentary form. Writing is not the only method for preserving
testator’s statements – the content of an oral will is preserved by witness testimony
– but it is the most reliable one.
In case of public wills or wills deposited with public authorities, the eviden-
tiary function is very strong. Questions regarding the existence and authenticity of
a will usually do not arise in cases where a will was kept by a public authority.40
For instance, wills made before a German public notary are ex officio deposited for
keeping with the relevant local court and also registered in a central register of wills,
which is kept by the Federal Chamber of Notaries.41
Taking into account that the testator cannot testify of his intentions and also
that interpretation of a will may take place long after its execution, formalities play
a crucial role in providing permanent and reliable proof of testamentary disposi-
tions.42 In contrast, interpretation of contracts takes place when both parties, usual-
ly, can testify and also in temporal proximity to contract conclusion due to statutes
of limitation.43

3.2. Evidentiary function – finality of intent


The most important function of testamentary formalities is to allow a differ-
ence to be made between preliminary drafts and final testamentary dispositions.
The fact that the testator performed the ritual of will execution allows the court to
conclude that the will was made with final testamentary intent.44 The testator’s sig-
nature is the most important indication that his decision is final, but other formali-
ties, such as the requirement that the testator must request the witnesses to sign the
will, also serve this purpose.45
The ritual function is closely connected with the warning function. Perfor-
mance of a certain ritual – even if it is very simple – warns the testator that his
declaration will have important legal effects. The intensity of the warning depends,
of course, on the complexity of the ritual. Warning function is best served by public
wills and witnessed wills, while holograph wills do not provide such a strong indica-
tion of the importance of the testamentary act.46
If the law allowed any oral statement or writing by the testator to be qualified
as a last will, merely on account of its contents, there would be insoluble uncertainty
about the finality of the testator’s statement. Casual discussion of the testator about
his last wishes and unfinished drafts of testamentary dispositions must remain with-
out legal effect. The law requires the testator to indicate by some reliable sign (such
as the signature), that his decision contained in a written statement is final. On the
40 D. Leipold, 114.
41 Ibid., 117.
42 A. G. Gulliver, C. J. Tilson, 6.
43 Ibid.
44 A. G. Gulliver, C. J. Tilson, 4.
45 Ibid., 5–6.
46 A. G. Gulliver, C. J. Tilson, 14.
Importance of Will Execution Formalities in Serbian Law 479

other hand, in the case of an extraordinary oral will, the circumstances in which the
will is declared guarantee that the testator is expressing his final intention.47 This is
a very simple, but fundamental purpose of testamentary form.

3.3. Consultation function


The function of providing legal advice to the testator is particular to public
wills. The role of the public notary, or a judge, is not limited to drafting the will
according to the testator’s instructions; he must familiarize himself with the inten-
tion of the testator and the factual background of his dispositions, he must advise
the testator of the legal effects of the will and he must make sure that the intention
of the testator is set out in clear terms.48 Together with safekeeping of the will, the
consultation function guarantees maximum legal certainty with regard to the valid-
ity of the will.

3.4. Protective function


It seems obvious that formalities play a protective role by reducing the pos-
sibility of undue influence or forgery. However, this purpose of testamentary form,
which may even seem as the most important at first glance, is very questionable.
It has been convincingly argued in legal theory, that will execution formalities of-
fer very little protection against fraudulent conduct,49 which is especially true of
private wills. For instance, the requirement of handwriting in a holograph will may
protect well against forgery, but it cannot protect against undue influence.
Formalities of a witnessed will offer even less protection – there is no protec-
tion against undue influence and it is not difficult to forge the will, since only the
testator’s signature must be forged. The requirement of disinterested witnesses can-
not protect the testator from undue influence which takes place before will execu-
tion.50 Moreover, the requirement of attestation cannot prevent dishonest persons
from providing false testimony of the circumstances of will execution.51 Having in
mind the numerous shortfalls of attestation, James Lindgren argued that attesta-
tion should be removed altogether as a formal requirement.52 He pointed out that
witnessing cannot prevent fraud and undue influence and that this requirement is
“mainly a trap for the innocent”.53
The inadequacy of the witnessed will has also been pointed out in Austrian
legal theory.54 The weakness of their protective function came to attention in the

47 Think of a person seriously injured in a car crash, who is unable to write or sign anything, stating his
last wishes in the emergency room. If he does not survive, his statement should be accepted as a will.
Taking the circumstances into account, it is reasonable to suppose that he stated his final wishes.
48 H. Brox, 69.
49 A. G. Gulliver, C. J. Tilson, 9–13.
50 Ibid., 13.
51 Ibid., 11.
52 J. Lindgren, 541–573.
53 Ibid., 555.
54 C. C. Wendehorst, “Testamentary Formalities in Austria”, Comparative Succession Law: Testamen-
tary Formalities (eds. K. G. Creid, M. J. Dewall, R. Zimmermann), Vol. 1, Oxford University
Press, Oxford 2011, 244–245.
480 Miloš Vukotić

“Dornbirn scandal” of 2009, when it was discovered that numerous witnessed


wills had been forged by clerks of a local court.55 In the wake of this scandal, an
outright abolition of the witnessed will has been proposed.56 In 2015, the form of
the witnessed will was changed by adding more restrictive requirements.57 Most
importantly, the testator must insert a provision, in his own handwriting, that the
document contains his last will.58 Thus, the Austrian legislator decided to add the
distinctive element of the holograph will to the witnessed will, but only with regard
to the nuncupatio. The aim of this change was to prevent fraudulent manipulation
of witnessed wills.59
Finally, it should also be taken into account that the protective function of form
is much less pronounced in wills than in contracts. The need to protect the testator
against imposition is diminished by the fact that wills are freely revocable.60 The mak-
ing of a will entails no imminent dangers for the testator. The legal consequences of a
will take place only after testator’s death and he may revoke his will at any time.
Protection afforded by testamentary form may be important for the testator
who is making his will in extremis, i.e. on his deathbed.61 However, even if testators
make their wills in sight of death, the protection afforded by formalities is weak.
Formal requirements cannot protect against false testimony or prevent undue influ-
ence which was exerted before the will was duly executed. Even a holograph will
does not guarantee absence of imposition: “A holographic will is obtainable by com-
pulsion as easily as a ransom note.”62
Instead of ineffective formal requirements, the testator is protected by rules of
substantive validity of the will.63 A formally valid will may always be contested for
lack of genuine animus testandi. If it is proven in court that a will was made under
undue influence or that it has been forged, it will be substantively invalid and pro-
duce no legal effect.

4. FORMALITIES IN SERBIAN LAW


Serbian law recognizes a large number of different forms. Testators have both
private and public forms at their disposal.64 The simplest form is the holograph will,
which requires only testator’s handwriting and handwritten signature.65 The most
complex private form is the witnessed will: the testator must declare that he has
55 Ibid.
56 Ibid., 252.
57 B. Eccher, Erbrecht, Verlag Österreich, Wien 2016, 64.
58 Ibid.
59 Austrian Ministry of Justice, Explanatory memorandum of the Erbrechts – Änderungsgesetz 2015
(100/ME), 9, available at: https://www.parlament.gv.at/PAKT/VHG/XXV/ME/ME_00100/index.
shtml, last visited 4 April 2017.
60 A. G. Gulliver, C. J. Tilson, 9.
61 Ibid., 10–11.
62 Ibid., 14.
63 J. Lindgren, 555–556.
64 D. B. Đurđević, (2015), 129.
65 Art. 84 SA.
Importance of Will Execution Formalities in Serbian Law 481

read the will;66 he must declare that it is his will (acknowledgement) and then he
must place his handwritten signature on the will.67 He must perform all these acts
before two witnesses.68 Although there is no explicit requirement in the Succession
Act, the courts require that both witnesses are present at the same time when the
testator accepts and signs the will.69 The most important public form is the notarial
will, where the testator dictates his wishes to a public notary and then reads and
confirms the deed which has been drafted by the notary.70 The same form applies
for wills made before a judge.71
The form which deserves most criticism is the witnessed will, not only because
of detailed and numerous formalities, but also because the Succession Act contains
restrictive provisions on testamentary witnesses.72 Almost all persons who belong
to the testator’s family are incapable of acting as witnesses.73 Moreover, the use of
an “interested” witness makes the will voidable, unless there are more than the re-
quired number of witnesses and the other witnesses are capable.74 Furthermore,
Serbian law does not allow the courts to dispense with testamentary formalities – if
a document does not comply with all formal requirements, it is voidable.75 As will
be shown below, this approach often leads to inequitable results, especially with re-
gard to witnessed wills.

4.1. Application of formal requirements in judicial practice


In 2006 the Supreme Court of Serbia nullified a witnessed will because wit-
nesses were not present at the same time when the testator signed and acknowl-
edged his will.76 The testator had typed the will on a typewriter.77 He read the will
to one witness and signed it in his presence.78 Later on the same day, the testator
acknowledged the will and his signature in the presence of the second witness.79
The court insisted on a strict interpretation of statutory requirements, although it is
66 A witnessed will does not have to be in the testator’s handwriting, it may be written by someone
else, it may be typed or printed.
67 Art. 85 SA.
68 Ibid.
69 See decisions cited in part 4.1, infra.
70 Art. 111a SA.
71 Art. 86–89 SA.
72 The witnessed will is generally seen as the most complicated form, see: R. Zimmermann, “Testa-
mentsformen: »Willkür« oder Ausdruck einer Rechtskultur?”, Rabel Journal of Comparative and
International Private Law 76/2012, 483.
73 Art. 113 (1) SA. The list of persons who are not capable of acting as witnesses includes: all di-
rect relatives, collateral relatives up to the fourth degree, relatives by marriage up to the second
degree, relatives by adoption, spouse, former spouse, non-marital partner, former non-marital
partner, guardian, former guardian, ward and former ward.
74 D. B. Đurđević, (2015), 150.
75 Art. 168 SA. Under Serbian law a formally defective will is not void ipso iure, but voidable.
76 Decision of the Supreme Court of Serbia, Rev. 964/2006, available at: http://www.vk.sud.rs/sr-lat/
rev-96406, last visited 28 February 2017.
77 Ibid.
78 Ibid.
79 Ibid.
482 Miloš Vukotić

not explicitly provided that witnesses need to be present at the same time. This case
is a typical example of formalities defeating intent.
Even more unjustified formalism may be seen in another decision of the Su-
preme Court of Serbia, also from 2006.80 In this case, the testator acknowledged a
will, which was previously typed and signed, in the presence of two witnesses, who
were called specifically to act as witnesses.81 Although both witnesses attested that
the testator acknowledged the will, the court decided that the will was void because
the witnesses were not present at the time when the testator placed his signature on
the will.82 According to strict and literal interpretation of the provision on witnessed
wills, the witnesses must witness two acts: the acknowledgment and the signing by
the testator.83 Even if there are no suspicious circumstances, the testator must sign
his will in the presence of two witnesses, he cannot acknowledge a signature which
was placed beforehand.84
The requirement of signature is interpreted strictly. The Supreme Court of Ser-
bia nullified a will which contained the testatrix’ fingerprint instead of a signature,
despite the fact that the will was witnessed by three witnesses.85 This solution seems
too harsh. The requirement of signature only serves to show finality of the testa-
tor’s decision. This purpose is equally well served by a fingerprint. It could even be
said that a fingerprint is a more powerful indication of testamentary intention, since
people usually do not dip their fingers in ink in order to sign everyday documents.
Moreover, a fingerprint offers stronger evidence of identity than a handwritten sig-
nature, especially if the document is printed. The only danger that may be increased
is the danger of imposition, but this danger can be reduced by substantive rules
relating to testamentary capacity.
The requirement of disinterested witnesses is also applied strictly. A will which
was witnessed by two witnesses, one of whom was the brother of the testator is
voidable, even if the brother receives no benefit under the will.86 A will is voidable
if it was attested by a grandchild of the testator.87 The courts do not consider the
existence of imposition or fraud, they automatically nullify wills, since the presence
of disinterested witnesses is considered a requirement of form.
It should be mentioned that there are decision which suggest a more purposive
approach to testamentary form. Thus, in a recent decision of the Appellate Court of
80 Decision of the Supreme Court of Serbia, Rev. 747/06, available at: http://www.vk.sud.rs/sr-lat/
rev-74706, last visited 28 February 2017.
81 Ibid.
82 Ibid.
83 Ibid.
84 Decision of the Supreme Court of Serbia, Rev. 3085/05, available at: http://www.vk.sud.rs/sr-lat/
rev-308505, last visited 28 February 2017.
85 Decision of the Supreme Court of Serbia, Rev. 1458/02, available in Paragraf Lex database 18
January 2017.
86 Decision of the Supreme Court of Serbia, Rev. 1400/2015, available at: http://www.vk.sud.rs/sr-
lat/rev-14002015-nasledno-pravo-rušljivost-zaveštanja, last visited 1 March 2017.
87 Decision of the Appellate Court of Subotica, Gž. 295/2013, available in Paragraf Lex database 18
January 2017.
Importance of Will Execution Formalities in Serbian Law 483

Belgrade, a witnessed will was upheld, although the testatrix did not explicitly state
that she had read the will.88 The testatrix had dictated her will to a lawyer, the will
was read to her and handed over to her and she said: “This is it and it is good”.89
The will was then signed by the testatrix and the witnesses.90 The court concluded
that the circumstances of the case indicate that the testatrix was fully aware of the
contents of the will and, therefore, that the purpose of the form has been satisfied.91
It is also important to note that the court recognized that the main purpose of form
was to protect the testator and his testamentary dispositions.92

4.2. Suggestions for reform


In 2006 the Serbian Government formed a commission for the drafting of a
new civil code.93 The Draft Civil Code (hereinafter: DCC) was published for public
discussion in 2015.94 With regard to testamentary formalities, the DCC should be
criticized for its conservatism. Firstly and most importantly, the commission has
failed to improve the law by removing unnecessary formalities – existing provisions
were merely copied.95 Secondly, the commission proposed an additional formality
for holograph wills: the indication of the date of execution.96 Therefore, instead of
removing unnecessary formalities, the commission proposed the inclusion of an-
other unnecessary formality.
The introduction of the date as a formal requirement of the holograph will
has been convincingly criticized by Đurđević, who argued that such a requirement
would unduly restrict freedom of testation and lead to invalidity of many authentic
wills.97 He pointed out that the cases in which the validity of the will depends on
the date of execution are very rare in practice.98 Furthermore, dating of a holograph
will would not significantly increase legal certainty: even if a will bears the date of
execution, interested parties could claim that the wrong date has been indicated.99
Instead of the date requirement, the Serbian legislator should follow the solution of
German law: if a holograph will does not contain an indication of the date of execu-
tion, it will be invalid only if the date cannot be proven by other means and if the
88 Decision of the Appellate Court of Belgrade, Gž. 6348/13, available at: http://www.bg.ap.sud.rs/cr/
articles/sudska-praksa/pregled-sudske-prakse-apelacionog-suda-u-beogradu/gradjansko-odeljenje/
parnica/nasledno-pravo/gz-6348–13.html, last visited 28 February 2017.
89 Ibid.
90 Ibid.
91 Ibid.
92 Ibid.
93 Sl. glasnik RS, No. 104/06.
94 Government of the Republic of Serbia, Civil Code of the Republic of Serbia, Belgrade 2015, avail-
able at: http://www.mpravde.gov.rs/files/NACRT.pdf, last visited 3 May 2017.
95 Art. 2678–2708 DCC. Cf. Art. 84–113 SA.
96 Art. 2678 DCC. In the commentary of the Succession Act it was argued that the dating require-
ment would increase the evidentiary power of the holograph will, see: O. B. Antić, Z. M. Balino-
vac, Komentar Zakona o nasleđivanju, Nomos, Beograd 1996, 323.
97 D. Đurđević, “Sloboda testiranja i forma olografskog testamenta”, Pravni život 11/2009, 845–864.
98 Ibid., 861.
99 Ibid.
484 Miloš Vukotić

date of execution is relevant for validity.100 The date of execution is relevant only in
two types of cases: if there are conflicting wills, or if there is doubt that the testa-
tor had achieved the age of testamentary capacity when he made the will.101 The
burden of proof of the date of execution lies on the beneficiary under the will.102
Taking into account that freedom of testation belongs to the constitutionally pro-
tected core of succession law, the legislator is bound by the constitution to choose a
solution that is less restrictive of the freedom of testation.103
The solution adopted in the German Civil Code, which is proposed for Ser-
bian law by Đurđević, entails a two-tiered approach to formalities, which has been
advocated also in American legal theory.104 According to this approach, a distinc-
tion should be made between necessary formalities – the minimum which needs to
be satisfied for validity – and recommended formalities – the additional formalities
which are useful, but which are not necessary for validity of the will.105 The legislator
should not set an “aspirational standard” as the necessary minimum of formalities.106
Instead of adding new formalities, the legislator should focus on reducing for-
malism. The problem of formalism defeating intent can be overcome by two dif-
ferent methods. First of all, the legislator should remove unnecessary formalities
in witnessed wills. Common law jurisdictions, which have the richest tradition of
witnessed wills, should provide the model for the form of the witnessed will. As we
have seen, even the most conservative common law jurisdiction – English law – lays
down simple formal requirements: the testator may sign his will by any sign, he may
even direct someone else to sign the will and he may also acknowledge a signature;
two witnesses must be present at the same time when the testator signs or acknowl-
edges the will, but witnesses may sign or acknowledge their signature later, only
in the presence of the testator.107 In Australian jurisdictions it is still required that
witnesses are present at the same time when the testator signs the will, however the
courts often disregard this formality on the basis of the dispensing power.108 In a
witnessed will, testators should be able to sign the will by any mark which indicates
finality of intention. Testators should also be able to acknowledge a signature which
they had placed on the will before execution in the presence of witnesses. There is
no compelling reason to insist on simultaneous presence of witnesses, or to require
disinterested witnesses. Removal of all these formalities would not significantly in-
crease the risk of forgery, but it would reduce will contests and give more room for
the paramount principle of freedom of testation. Formalities must be appropriate to
the particular type of will. Since private forms do not guarantee professional legal

100 Ibid., 861–863. Cf. § 2247 (5) BGB.


101 R. Frank, Erbrecht, C. H. Beck, München 2003, 70–71.
102 Ibid.
103 D. Đurđević, (2009), 862–863.
104 J. Lindgren, 546–547.
105 Ibid.
106 Ibid.
107 § 9 Wills Act 1837 – as amended by Administration of Justice Act 1982.
108 N. Peart, 343.
Importance of Will Execution Formalities in Serbian Law 485

advice, the legislator should provide simple formalities that may be successfully per-
formed by people without legal education.109
Another, more radical approach would be to enact a power to dispense with
formal requirements, so that the courts may disregard formal non-compliance if they
have sufficient evidence that a will is genuine. Taking into account the prevailing at-
titude in civil law jurisdictions and the constitutional principle of separation of pow-
ers, this solution seems unlikely. However, it should be noted that a dispensing pow-
er would further increase the protection of testamentary intent, because the courts
could disregard formal mistakes when there is no suspicion about authenticity.

5. CONCLUSION
The main aim of testamentary form is to guarantee freedom of testation, as a
constitutionally protected principle of succession law. The legislator should, there-
fore, impose the least restrictive formal requirements which achieve the purposes of
proving and protecting the intent of the testator.110 With regard to private wills, the
legislator is under a special duty to provide simple formal requirements because pri-
vate wills do not guarantee professional legal advice. Private wills must be so simple
that most people would usually be able to execute them without formal defects. One
of the examples of such simplicity is the holograph will, although even this form
may be simplified.
Since formalities offer little protection against undue influence and forgery, the
ritual function and the evidentiary function should be seen as the most important
functions of testamentary form. Formalities which the testator must perform are
essential for showing finality of intent and for providing permanent evidence of in-
tent. Formalities are indispensable only with regard to these two goals. Protection
of the testator is adequately guaranteed by substantial rules on capacity and undue
influence. Formal deficiencies in attestation or form of signature should not be fatal
to the validity of a will if authenticity is not doubtful. The legislator should, there-
fore, not only remove unnecessary formalities, but also grant the courts the freedom
to dispense with testamentary formalities in appropriate situations.
We may conclude that will execution formalities should be radically simplified.
The form of the witnessed will under Serbian law offers an opportunity of improve-
ment by introducing more liberal rules of acknowledgement and attestation. The
rule which bars certain persons from witnessing on the basis of their relationship
with the testator should be removed altogether. Such a formal guarantee of impar-
tiality is utterly inadequate to protect the testator. It is also not necessary to exclude
all gifts to testamentary witnesses.
The holograph form may also be improved by allowing any type of sign which
indicates finality of intent instead of a handwritten signature. The proposal of in-

109 Grundmann rightly pointed out that private wills must have a simple form, which can be easily
satisfied by persons who are not legally educated. More complex forms are appropriate only if
they include legal advice by an educated lawyer. See: S. Grundmann, 442.
110 J. Lindgren, 546.
486 Miloš Vukotić

troducing a date requirement for holograph wills should be rejected. Instead of this
strict requirement, the legislator should provide an interpretive rule relating to date
of execution.
A more liberal approach to testamentary form would not put testators at an in-
creased risk of undue influence and forgery, but rather provide more certainty with
regard to testamentary dispositions and reduce the number of will contests. On the
basis of numerous court decisions from various jurisdictions and on the basis of
many educated observations, it may be concluded that will execution formalities
usually turn out to be traps for the uninformed, rather than safeguards for the vul-
nerable. Therefore, a lenient and purposeful approach to formalities would elevate
the intent of testator above technical requirements of will execution and thereby
give full expression to the principle of freedom of testation.