The importance of properly recording your last will and testament prior to the notarial deed

You have been living together unmarried for years and your partner dies shortly before the will is executed. What now? Nowadays, people are starting new families later in life, sometimes with complicated relationships with ex-partners and stepchildren. A will can provide clarity and prevent family disputes.

It is well known that inheritance law is particularly strict with regard to last wills and testaments. In principle, the statutory right of succession applies, unless a solicitor has executed a will. Pursuant to Section 3 of the Central Register of Wills Act, the solicitor must register the will with the Central Register of Wills.

The statutory regulation

The statutory regulation of succession in Article 4:1 of the Civil Code (BW) is based on the principle that succession takes place via the (statutory) system of intestacy, and that this can be deviated from in a last will and testament. Article 4:42 BW stipulates that a last will and testament can only be drawn up by last will; Article 4:94 BW sets specific formal requirements for its drafting. With the exception of a few emergencies described in the law (see Articles 4:97 – 4:107 BW), a last will and testament can only be drawn up by means of a notarial deed or a private deed deposited with a notary.

But what if the testator has exchanged drafts with the notary and dies before the deed is finally executed? Unfortunately, this happens regularly, sometimes even after the banns have been published and the wedding date has already been set. This results in legal proceedings. Life partners may find themselves out on the street because the heirs sell the house under the law of intestacy. Is there nothing that can be done about this?

Very occasionally, the derogatory effect (the court’s decision not to apply a rule of law) of Article 6:2(2) of the Dutch Civil Code comes to the aid of the intended heir.

What did the judge decide earlier?

From the various court cases, it is possible to distil what the touchstone is for the application of Article 6:2 of the Dutch Civil Code. And that touchstone is that it must be established with absolute certainty that the content of the draft deed corresponds to the last will of the testator.

A case in which this threshold was not met concerns a case in which the testator’s draft will was incomplete, or at least not fully completed. According to the court, there is therefore no absolute certainty that the content of the draft will (fully) corresponds to the testator’s last will and testament.

In a case where a spouse was in the process of divorcing a partner to whom she was married under a prenuptial agreement, and the notary had drawn up a draft will that still had to be signed and executed, it became clear from statements that the testator was under the assumption that the will had been arranged. Under the further circumstances, namely that the testator wanted to divorce because she discovered that her husband had debts and, in her opinion, was defrauding and manipulating her, the court had the required absolute certainty that the husband could not claim any rights to the estate.

In another case in which the testator died before the marriage took place, the surviving partner still recognised the testator’s last will and testament. The decisive factor in the application of the derogatory effect of reasonableness and fairness was that the draft will had been returned to the notary in view of the marriage with handwritten comments that were not related to the bequest, and the bequest was marked with a curl for approval. The notary stated at the hearing that the draft will reflects the testator’s wishes. The court therefore ruled that the succession of the estate should not be based on the statutory right of inheritance but on the draft will.

Conclusion

The lesson to be learned from the above is that it is best to draw up a will with some urgency. If the draft deed is acceptable, make this clear when returning it to the notary. This makes it clear that the draft deed reflects the testator’s final wishes and that recourse to Article 6:2(2) of the Civil Code is possible.

For advice, please contact Mr Jop Fellinger.