An analysis of the role of reasonableness and fairness in the settlement of an estate.
What happens when a testator has clearly recorded his last will and testament, but the will has not been notarised in time? Inheritance law has strict formal requirements that serve legal certainty, but what if those same rules lead to an outcome that conflicts with what the testator clearly intended? The tension between formal requirements and substantive justice is clearly highlighted in a recent ruling by the Gelderland District Court of 12 February 2025 (ECLI:NL:RBGEL:2025:1077).
The aforementioned ruling by the Gelderland District Court confirms that, under exceptional circumstances, a draft will can still be decisive for intestate succession. This article examines the question of when a draft will can become meaningful and what role reasonableness and fairness play in this.
When can a draft will be decisive for inheritance?
Anyone who wishes to dispose of their estate must set out their final wishes in a will. If no will has been drawn up, the legal rules within the so-called “intestacy law” must be followed.
In principle, a will is only valid if it is a notarial deed pursuant to Article 4:109 of the Civil Code (or a private deed deposited with a notary in accordance with Articles 4:94 and 4:97 of the Civil Code). Elements of the validity of the will include the signature of the testator (Article 4:109(1) of the Civil Code) and the notary (Article 4:109(2)).
This system offers legal certainty, but in case law it sometimes happens that the requirements of the notarial deed are set aside by invoking the limiting effect of reasonableness and fairness. This was the case in the judgment of the Gelderland District Court discussed in this article.
The case concerned the estate of a testator who, at the time of his death, was in a romantic relationship with the claimant and intended to marry her. In 2023, the testator had taken the initiative to have a will drawn up by a notary in which the claimant was designated as the sole heir. For that purpose, the notary prepared a draft deed, which the testator amended and initialled in March 2024 and then returned to the notary with a request to prepare it for execution. Shortly before the planned wedding, however, the testator died unexpectedly without having signed the will and thus without it having been notarised. The heirs under the law of intestacy had rejected the estate, after which a liquidator was appointed. The claimant then sought a declaration that the succession should not take place in accordance with the law of intestacy, but in accordance with the draft will of 2024.
The court considered that, although the draft will did not meet the legal formal requirements and was therefore not a notarial deed, it was unacceptable under the circumstances, according to standards of reasonableness and fairness, to settle the estate according to the law of intestacy. In this regard, the court considered it decisive that it had been sufficiently established that the draft will correctly reflected the actual and final last will of the testator and that he would have had this will executed if he had not died unexpectedly. This was also confirmed by the notary in question at the hearing.
For this reason, the court ruled that the succession should take place in accordance with the draft will and not on the basis of intestacy law.
Read the ruling here.
Deze uitspraak laat zien dat een concept-testament in bepaalde gevallen betekenis kan hebben voor de afwikkeling van een nalatenschap.
Practical considerations
It sometimes happens that someone has had a draft will drawn up but has never signed it definitively at the notary's office. In principle, such a draft will have no legal effect. If there is no notarised will, the estate will be distributed according to intestacy law and only in exceptional cases a draft can play a role. It is therefore important to formalise a will in good time, otherwise there is a risk that the estate will be distributed differently than intended.
In addition, it is advisable to document the decision-making process properly, for example by keeping drafts of the will and correspondence relating to it. The role of the notary is also very important: statements about the creation and content of a draft will may be decisive at a later stage.
Finally, judges are very reluctant to deviate from the statutory rules of succession if the legal consequences of a draft will are invoked. A ruling in which weight is nevertheless given to a draft will is an exception and not the rule. It is therefore very important in such cases to gather as much information as possible about the circumstances under which a draft will was drawn up. After all, it is the circumstances of the case that determine the value that can be attributed to a draft will.
Do you have any questions about (draft) wills? Please contact the inheritance lawyers at SPEE advocaten & mediation. They specialise in inheritance law and will be happy to advise you on your rights and obligations.