Succession clauses in an antenuptial contract are an exception to the rule that agreements relating to inheritance are unenforceable. The parties may make provision for the succession of the survivor of them to the estate (or part thereof) of the first dying spouse. Such a provision cannot be revoked unilaterally in a subsequent will without the consent of the benefiting party.
"The parties declare that on the death of either of them the survivor shall be entitled to the whole estate of the first dying."
"The parties declare that upon the death of the first dying of them, all assets belonging to such a party shall pass to the surviving spouse."
The parties may also insert other testamentary provisions in the antenuptual contract, for example, revocation of previous wills, appointment of executors and heirs, establishment of a mortis causa trust etc. See the model answer to Notarial Practice Examination - October 2002, Question 3, for an example of an antenuptial contract incorporating such other testamentary provisions.
It is also possible for a third person to bequeath his or her property to one or both of the spouses in the antenuptial contract. Just remember that the third person must then be joined as a party to the contract and he or she must also sign the contract in the presence of a notary. Such a bequest cannot be revoked by the third party without the consent of the benefiting spouse(s).
Practical Exercise 5
Two intending spouses consult you concerning their proposed antenuptial contract and regarding a joint will. They ask whether the joint will could be incorporated in the antenuptial contract and, if so, what the legal effects of such incorporation would be.
What advice would you give them?
An appropriate clause (a pactum successorium) can validly be inserted in the antenuptial contract. It cannot be revoked by one party without the consent of the other party, irrespective thereof whether the revocation is made inter vivos or by a later will of either one of the parties. Even where the spouses act jointly, for instance by a later joint will, and agree to cancel the provisions of the antenuptial contract and agree upon some other disposition, the survivor shall, before adiation (acceptance) of the benefits under the will, be entitled to fall back on the provisions of the antenuptial contract.
Where the first dying makes a will in conflict with the provisions of the antenuptial contract, the survivor is put to his election whether to accept the benefits under the will or to claim under the antenuptial contract.
Succession clauses in antenuptial contracts are an exception to the rule that agreements relating to inheritance are unenforceable. Whilst a will can always be revoked by the maker, or, in a mutual will, by either or both testators during their lifetime, a succession clause in an antenuptial contract has the force of a contract and it cannot be cancelled by the donor without the consent of the beneficiary.