Introduction
Medical confidentiality remains in force after a patient's death, but since 1 January 2020, Article 7:458a(1)(c) of the Dutch Civil Code has offered next of kin an exception under strict conditions: in cases of ‘overriding interests’, professional confidentiality may be breached, provided that the applicant can demonstrate that (1) these interests may be harmed and (2) access is necessary to protect those interests. The strictness of these conditions is evident from the recent ruling of the District Court of Rotterdam (3 maart 2025, ECLI:NL:RBROT:2025:2707) which rejected a request from a disinherited daughter who demanded access to her father's medical and nursing records in order to challenge his mental capacity at the time of his last will and testament (27 May 2019) .

The Rotterdam case:

In summary proceedings, a disinherited daughter sought access to her father's medical and nursing records (who died on 22 March 2022) in order to investigate his mental capacity at the time of making his will on 27 May 2019. The preliminary relief judge rejected the request on the grounds of:

1. Insufficient concrete evidence
   The geriatric report from January 2019 referred to a mild cognitive disorder, not to mental incapacity. The civil-law notary had not expressed any doubts about mental capacity at the time of execution, and summary proceedings in July 2019 showed that the testator was able to express his wishes clearly.
2. No need to breach
   According to the court, the general practitioner and care institutions rightly pointed out the uncertainty as to whether the file contained any relevant information at all; access would therefore amount to a ‘fishing expedition’.
3. Failure to exhaust alternative sources
   The daughter had not requested a file from the geriatrician or the GHZ, nor had she initiated disciplinary proceedings against the notary or a preliminary hearing to uncover the circumstances surrounding the will.
4. No urgent interest
   More than two years after her initial request, no urgent interest in immediate access could be demonstrated.
   .

These factors led the court to reject the request and order the costs to be paid.

When can professional secrecy be breached?

A similar issue was at the heart of a ruling by the Amsterdam District Court on 1 September 2022 (ECLI:NL:RBAMS:2022:5178) the relatives of an aunt who disinherited her heirs sought access to her GP's records to prove that she was mentally incompetent when she changed her will (October 2017). The preliminary relief judge explicitly used the KNMG guideline ‘Access to medical records for surviving relatives’ (19 January 2021) as a framework for assessment. This guideline states that access may be granted in the event of disinheritance and concrete indications of mental incapacity. The Amsterdam court ruled that:

• The heirs had a compelling interest: they had been disinherited and had been ordered to provide evidence in proceedings on the merits, which meant that they had an interest in accessing the medical file.
• There were concrete indications (including medical signs, notarial and judicial indications) that the aunt may have been incapacitated.
• Access to the GP file was necessary because it was the only remaining source of relevant information.
  .

Therefore, access was granted, limited to the relevant period surrounding the will.

In another ruling by the Amsterdam District Court on 28 November 2023 (ECLI:NL:RBAMS:2023:7533) the brother of a deceased person requested access to the GP's file to investigate whether she was under the influence when she changed two draft wills in May and June 2023. The court ruled that:

• Disinheritance and a significant deviation between the draft and final will constituted a compelling interest.
• The heir had demonstrated that his interests would be harmed without access.
• Access was necessary to investigate the suspicion of influence (including heavy medication, breast cancer, care relationships).
  .

The preliminary relief judge granted the claim and ordered the release of the entire file covering the relevant period.

Lessons for practice

The case law shows that it is essential to be very specific about what you request from a doctor's file. It is therefore advisable to limit the time period around the time the will was drawn up and to request file-specific parts that are directly related to the legal interest (mental capacity, traumatic events, medication reports). A broad request is quickly labelled a ‘fishing expedition’.

It is also important to build a careful file. First, gather all available sources (specialists, disciplinary complaints against notaries, previous court reports) to demonstrate a compelling interest. This will enable you to explain why other sources (geriatrician, hospital file, disciplinary chamber) are insufficient or do not provide timely access.

Judges agree that the KNMG guidelines provide a reliable assessment framework for Article 7:458a(1)(c) of the Dutch Civil Code.

Conclusion

The ruling of the Rotterdam District Court of 3 March 2025 illustrates the limits of the exception to medical confidentiality: without concrete indications, necessity and exhaustion of alternative means, the file remains closed. On the other hand, there are several Amsterdam rulings in which access was granted on the basis of disinheritance and clear medical indications. It is extremely important to clearly define the claim, carefully substantiate the compelling interest on the basis of the KNMG guidelines, and exhaust alternative channels of information at an early stage. This will increase the chances of overcoming medical confidentiality.

Do you have questions about contesting a will or need legal advice? Please contact Angelique van den Eshoff of SPEE lawyers & mediation. As an experienced inheritance lawyer and estate mediator, she can assist you in complex inheritance matters and help you take the right steps in the interest of a fair settlement of the estate.