Even a well-drafted will can lead to a legal dispute. A will is intended to provide clarity regarding the distribution of an estate. Yet, in practice, the interpretation of testamentary provisions regularly leads to conflicts, precisely because circumstances at the time of death may differ from what the testator had anticipated. This applies in particular to what is known as a ‘two-stage bequest’: a form of will in which an heir inherits subject to a condition, and a second person only stands to inherit once that condition has been fulfilled. But what if that condition had already been fulfilled at the time of death? The Supreme Court provided clarity on 29 May 2026.

What is a two-stage bequest?

A two-stage bequest is a testamentary arrangement in which the testator designates two groups: the ‘conditional beneficiary’ and the ‘contingent beneficiary’. The ‘encumbered party’ inherits first, but their right to inherit is subject to a resolutive condition. Once that condition is fulfilled, the ‘encumbered party’ forfeits the inherited assets and the estate passes to the ‘expectant party’, who inherits subject to the mirror-image suspensive condition.

A typical example: a testator bequeaths his assets to his son (the ‘burdened heir’), but stipulates in his will that if the son ever goes bankrupt, the estate shall pass immediately to the grandchildren (the ‘expectant heirs’). In this way, the testator protects the assets from the son’s creditors. This is also known as a ‘reciprocal’ provision or fideicommissum de residuo. The two-stage bequest is governed by Articles 4:137 to 4:141 of the Civil Code (BW).

The law and the two-stage bequest

The two-stage bequest is based on the principle that a bequest may be conditional: its effect depends on a future and uncertain event (Article 4:138 of the Civil Code). Both the resolutive condition for the person subject to the condition and the suspensive condition for the beneficiary must still be future and uncertain at the time of death. Once the condition has been fulfilled, the beneficiary becomes the (sole) heir.

In addition, the statutory share plays an important role. The statutory share is the minimum share to which a child of the testator is entitled by law, regardless of the provisions of the will (Section 4:63 of the Dutch Civil Code). A child cannot be entirely disinherited: they are in any case entitled to half the value of their statutory share of the estate. Where a child, as a legitimate heir, already inherits something under the law of succession, the value of that inheritance is deducted from their claim to the statutory share (Article 4:71 of the Dutch Civil Code).

Recent case law: Supreme court 26 May 2026 (ECLI:NL:HR:2026:813)

In this case, a testator had bequeathed his estate to his son as the beneficiary, subject to the resolutive condition of bankruptcy. The grandchildren had been designated as prospective beneficiaries. The problem was that, at the time of death, the son was already bankrupt. The resolutive condition had therefore already been fulfilled before the inheritance became due.

The administrator in the son’s debt restructuring scheme subsequently claimed the statutory share on his behalf. The grandchildren defended themselves by arguing that, for the purposes of Article 4:71 of the Dutch Civil Code, it should be treated as though the son had received his share of the estate unconditionally. If the value of that unconditional share were greater than the statutory share, there would be nothing left to claim.

The Supreme Court rejected this defence on two grounds.

Firstly, the Supreme Court ruled that the son had not become an heir at all. A two-stage bequest presupposes that the condition is still future-oriented and uncertain at the time of death. Since the son was already bankrupt at the time of the testator’s death, the resolutive condition had already been fulfilled and it is not the person subject to the condition (the son) but exclusively the beneficiaries (the grandchildren) who become heirs. The son had therefore received nothing from the estate and could not, consequently, be a statutory heir within the meaning of Article 4:71 of the Dutch Civil Code.

Secondly, and certainly also of importance in the practice of inheritance law: the Supreme Court made it clear that it is incorrect to ignore the value-reducing effect of a condition when calculating the statutory share. If a person subject to a condition inherits subject to a resolutive condition of bankruptcy, that acquisition has less economic value than an unconditional acquisition. The Court of Appeal had ruled along these lines, and the Supreme Court confirmed that this is the correct approach. Ignoring the value-reducing effect would undermine the legitimate heir’s claim to their statutory share.

Practical advice

- Check the current situation when drawing up a will: If you wish to include a two-stage bequest, have a solicitor or lawyer assess whether the chosen condition is genuinely future-oriented and uncertain at the expected time of death. A condition that has already been fulfilled renders the two-stage bequest illusory.

- Take the statutory share into account when disinheriting: It is not always possible to completely exclude a child via a two-stage bequest. If the child is a statutory heir, they may, despite the will, claim the value of their statutory share. Have the testamentary arrangement reviewed in this regard.

- Understand the difference between being disinherited and inheriting nothing: A child who has not formally become an heir (because the condition had already been fulfilled) does not automatically lose their entitlement to the statutory share. That entitlement is separate from the status of being an heir.

- Document gifts in good time: The statutory share is calculated on the basis of the testator’s estate, which also includes certain gifts (Section 4:65 of the Dutch Civil Code). Ensure that gifts are properly documented to prevent disputes later on.

- Seek legal advice in good time regarding an heir’s debt problems: Does a potential heir have debts or is he at risk of going into administration? If so, discuss the implications for estate planning with a specialist in inheritance law or insolvency.

Conclusion

The Supreme Court’s ruling of 29 May 2026 makes it clear that a two-stage bequest only applies if the condition is still future-oriented and uncertain at the time of death. If that condition has already been fulfilled, the beneficiary inherits immediately and there is no inheritance under the law of succession for the person subject to the condition. Furthermore, the Supreme Court confirms that the value-reducing effect of a condition is taken into account when calculating the statutory share. These are two key principles for anyone planning an estate or dealing with one. Sound advice on wills and timely legal guidance are essential to avoid surprises.

Do you have any questions about your will or the statutory share? Ms Angelique van den Eshoff of SPEE Advocaten & Mediation specialises in personal and family law and inheritance law. She will be happy to assist you in drawing up or reviewing a will, calculating the statutory share, or settling an estate. Please feel free to contact her for a consultation.

Angelique van den Eshoff LMM, lawyer, divorce and inheritance law mediator, member of vFAS