6 January 2025
One can inherit in two ways: through the legal system (known as intestacy law) or through a will. The legal system can only be set aside by a will. A will must be drawn up by a civil-law notary, who will also formally ‘execute’ it.
At the time of executing the will, the civil-law notary verifies that what it contains corresponds to the testator’s actual wishes. The civil-law notary communicates the contents of the will and provides an explanation. Following this, the will is signed. If the will has not been drawn up and executed by a civil-law notary, it is void (legally invalid). A draft will has not yet been executed and is therefore legally invalid.
It follows from case law, however, that an exception is possible. The Court of Appeal of The Hague concluded on 6 August 2019 [1] that failure to take a draft will into account may be unacceptable by the standards of reasonableness and fairness. It must then be absolutely certain that what is included in a draft will corresponds to the testator’s last wishes. In the court case in question, however, the court ruled that this was not the case.
A recent case before the Court of The Hague on 30 August 2023 [2] ruled otherwise. In this court case, the testator wanted to amend her will because divorce proceedings were pending. She therefore wanted to disinherit her husband. The civil-law notary drew up a draft will. The will was subsequently not executed because the testator had not yet paid an outstanding invoice of the civil-law notary. The civil-law notary wanted to wait until the invoice was paid before executing the will. The invoice was subsequently paid, but the civil-law notary never contacted the testator again to execute the will.
The court concluded that it was absolutely certain that the draft reflected the last will of the testator at the time of her death. It follows from third-party statements that the testator assumed that it had all been arranged. She assumed that her children would inherit everything and not her husband. Apparently, she thought that after she paid the invoice the civil-law notary would execute the will without her involvement.
The court found that it was sufficiently established that the testator intended to disinherit her husband. Based on these circumstances, the court found that there was absolute certainty that what was in the draft will corresponded to the final will of the testator at the time of her death. The testator’s children won their case and were designated as heirs based on the draft will.
This means that, under circumstances, rights can be derived from a draft will. However, this is an exception and will remain so for the time being. In 2023, Parliamentary questions were raised about the necessity to sign a will. According to the minister, it is generally undesirable and impracticable to assign a value to draft wills. The courts have the option to disregard the formal requirements based on the circumstances before it and assess whether a draft will contains the testator’s actual will. The minister said that no change in the law is needed for this purpose.
As a result of this ruling, it is possible that litigation on the content of a draft will will be more frequent. As recently as 6 March 2024, the Gelderland District Court ruled on a similar case. [3] In this case, the draft will was found to be invalid.
Do you have questions about the validity of a will? We are happy to assist you with our specialist knowledge and experience of inheritance law. Please do not hesitate to contact us.
[1] ECLI:NL:GHDHA:2019:2800 (NL)
[2] ECLI:NL:RBDHA:2023:13021 (NL)
[3] Rechtbank Gelderland (NL)
