Earlier this year, we wrote about the significance of a draft will and the role that reasonableness and fairness can play in this context. A new ruling has since been handed down, bringing this topic back into the spotlight. On 8 July 2026, the Amsterdam District Court ruled that applying the statutory right of inheritance in a case where the will had never been signed would be unacceptable according to the principles of reasonableness and fairness.
What were the facts of this case?
A woman and her partner had been in a relationship since 2003 and entered into a cohabitation agreement in 2006. They had two minor children, born in 2010 and 2012. At the time of her death in 2025, the woman had no will.
On 30 May 2025, she was diagnosed with an inoperable brain tumour. She and her partner subsequently contacted a notary’s office. During a meeting, they discussed their wishes, which the notary incorporated into identical draft wills. On 7 July 2025, the drafts were made available digitally, accompanied by an explanation: the surviving partner would be the sole heir; the children would receive a non-interest-bearing bequest equal to their share of the estate (payable upon the death of the surviving partner, or earlier in specific cases); there was a guardianship arrangement, a testamentary administration of the bequest, and the partner would become the executor.
At the partner’s request, only a misspelt name was corrected; no changes were made to the administration of the estate itself. However, the notary pointed out that the cohabitation agreement might be regarded as having been terminated, as the partners had not registered at their address on the same day, and proposed an amendment to address this. On 8 July 2025, it was agreed that the notary would visit the couple at home the following day to have the documents signed, as the wife was no longer able to come to the office. An hour before that appointment, she was rushed to hospital following an epileptic fit, lost consciousness and never regained it. As a result, the draft will could no longer be signed.
The partner sought a declaration that succession should take place in accordance with the draft will rather than under the law of intestacy, and that the cohabitation agreement was still legally valid. As the children were interested parties in their capacity as statutory heirs, the magistrate appointed a special guardian to represent their interests. The special guardian did not put forward any defence and considered that the application of the draft will was in fact in the children’s best interests.
The court’s considerations and judgment
The court first states that, in principle, succession takes place in accordance with the law of intestacy and that a deviation from this is only possible by means of a will which, on pain of invalidity, must be drawn up by a notary and signed by the testator. The notarial deed guarantees that the will reflects the testator’s true intentions.
In exceptional cases, the court may nevertheless waive this formal requirement if the criteria of reasonableness and equity set out in Articles 3:12 and 6:2 of the Dutch Civil Code so require. The court must exercise restraint in this regard: a deviation from the statutory system is permissible only where the consequences would be unacceptable, as this system serves to ensure legal certainty for the designated heirs.
According to the court, such exceptional circumstances do exist in this case. It is established that the woman intended to set out her last will and testament and that only her unexpected death prevented this. She had discussed her wishes with the notary; these had been incorporated into the draft; and she had not had any substantive changes made to it – only a clerical error was corrected, and a tax-efficient addition was included. An appointment had already been made to sign the will. A written statement from the notary confirmed this, and statements from friends and family confirmed that the woman wanted her partner to be able to continue living with the children without financial worries and that, because of the tax benefit, her inheritance would go to him. Furthermore, the draft no longer contained any blank spaces or crossings-out. On this basis, the court concluded that the content of the final draft corresponded to her actual last will, and that she would have had it executed had she not died.
The court then assessed separately whether the application of the draft will was also in the children’s best interests. The special guardian had spoken to the children: they were aware that their parents had been drawing up a will and were able to consent to the draft being declared valid after all. According to the special guardian, this is in their best interests, as it is customary for the surviving parent to inherit first upon the death of one parent, because the application of the right of reversion would result in a considerably higher inheritance tax for the children – given the significant difference in the tax-free allowance between a partner (€804,698) and children (€25,490 each) – and because this could jeopardise their living arrangements. Furthermore, the children are the sole heirs in the partner’s own will, so their claims are still safeguarded through his estate. After speaking separately with the partner, the special guardian found no indication that he would put his own interests above those of the children.
The court concluded that the legal certainty served by the formal requirements of a will does not, in this case, outweigh the interests of the partner and, above all, the children, nor the woman’s wish to properly arrange the consequences of her death. This is also in line with the legal principle prevailing in the Netherlands that, upon the death of one parent, the other parent inherits first, so that the family can continue as far as possible without drastic changes such as a forced move. The court therefore ruled that the succession must take place in accordance with the draft will.
With regard to the cohabitation agreement, the court ruled that, in view of the partner’s substantiated claim – supported by deeds of transfer for the joint homes – and the absence of a defence, it is sufficiently established that the partners cohabited continuously and that the agreement was only dissolved upon the woman’s death. This is significant because the draft will, contains a provision based on Article 4:82 of the Dutch Civil Code, which requires that the partners have been cohabiting and have a cohabitation agreement; as a result, the children’s claim to their statutory share only becomes enforceable after the death of the surviving partner.
Read the full judgment here.
What does this mean in practice?
This judgment shows that a will which has never been notarised may, in very exceptional circumstances, nevertheless serve as the basis for succession. The decisive factor here was that, based on a coherent set of circumstances – the discussion with the notary, the absence of substantive changes, the already planned signing and the statements by third parties – it was established beyond doubt what the testator’s actual last will was, and that only her sudden death prevented its formal completion.
This is not a free pass to invoke the principles of reasonableness and equity in the case of every unfinished will: the court emphasises that it will exercise restraint and that, in principle, the legal certainty of statutory succession carries considerable weight. The greater the uncertainty regarding the testator’s precise wishes, or the more unresolved issues or potential amendments there were in a draft, the less likely an appeal to this exception is to succeed.
For families with minor children, this case demonstrates just how heavily their interests are considered. The court assesses this separately and may also hear the children’s views directly through a special guardian.
Do you have any questions about a will, intestate succession or a cohabitation agreement? Please feel free to contact our inheritance law lawyers. We would be happy to advise you.
𝘋𝘪𝘦𝘥𝘦𝘳𝘪𝘤𝘬 𝘓𝘶𝘪𝘫𝘤𝘬𝘹, 𝘓𝘓𝘔, 𝘭𝘢𝘸𝘺𝘦𝘳