Professional Documents
Culture Documents
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
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
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
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.
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
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.
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
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.
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
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
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.