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Fairly denying a last will

Fairly denying a last will

Coetzee advocates the legal accommodation of denying a writer’s instruction to destroy unpublished manuscripts after he has deceased. What has Dutch inheritance law to offer?

‘The world is a richer place now that we have The Hanging Garden’, Coetzee recently wrote in his review of an unfinished manuscript by the Australian writer Patrick White. Publication of the Nobel Prize winner’s manuscript wasn’t a matter of course, though. White, who passed away in 1990, had instructed his agent Barbara Mobbs to destroy any manuscript that would be left.

Coetzee expects public opinion to be ‘solidly’ behind Mobbs and other ‘literary’ executors, like Kafka’s agent Max Brod to whom we owe the publication of The Trial, famously denying authors’ instructions to destroy potentially great literary works. They are ‘in a better position than the deceased to see the broad significance of the work’ and ‘considerations of the public good should trump the expressed wishes of the deceased’. In Coetzee’s view, the ‘reigning legal climate’ in Anglo-American law also allows executors to ‘reinterpret instructions in the light of the general good’.

Graduate students were asked to answer the question whether Dutch law would allow for such a ‘reinterpretation’ of an author’s instructions to destroy unpublished work. They found a recent case showing quite some flexibility in the interpretation of wills. The case was about the phrase ‘I appoint my brother W. (…) to be my sole heir’. Husband E., though, contended that he should be considered testatrix’ sole heir. Indeed witnesses stated that the latter only appointed her brother W. in order to avoid her parents becoming heirs, given that at the time there was no one else available to appoint. But when she married husband E., many years after she had made her will, the situation changed.

The Court of Appeal decided, with the consent of the Dutch Supreme Court, that the appointment of brother W. was to be understood to apply only to the situation where there was no alternative than to appoint her brother. As this situation now no longer existed, the appointment of brother W. was no longer effective. Likewise, instructions to destroy unpublished work could be understood to only apply to the situation where a writer fails to see the importance of his work. Had he known the importance, he wouldn’t have given such instructions, one could argue.

Dutch law, the students pointed out, offers yet another possibility to deny instructions to destroy potentially great literary work. This is the possibility not to apply a certain rule in a particular case, if this would be unacceptable in terms of fairness. In this overarching fairness test, amongst other things, the societal and personal interests involved are to be taken into account. This route, I would say, best suits cases like White’s and Kafka’s. Rather than creatively reading something into instructions which in themselves are rather ‘clear’, the fairness test allows for the explicit balancing of the public good of making the world a better place, as Coetzee puts it, by publishing The Hanging Garden, and Patrick White’s personal interest in having his instructions carried out. In addition, taking this route also emphasizes that denying the deceased’s will should be the exception to the rule.

Many thanks to the students of Group 1 of the 2013-2014 Practicum civil law course.

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