In a will, a testator can determine who exactly inherits what, but it is also possible to assign a legacy to someone. A legacy is defined in Article 4:117 (1) of the Civil Code as a disposition of property upon death in which a testator grants a right of action to an heir or a third party (also called: legatee). An example of a legacy is the right to use and occupy a house. This means that the testator can provide in his will that a certain person gets the right to use and live in a property, without that person becoming the owner of the property. The issue of a legacy is necessary for the execution of a will. This article discusses the issue of a legacy and the options for claiming its issue.
Usefulness of a bequest
A bequest in a will allows for specific goods or rights to be granted to one or more persons without designating them as heirs. This can include, for example, a specific amount of money or a specific asset such as an art collection. A bequest offers flexibility and customisation in the distribution of the estate. The testator retains control over exactly who receives what. In this way, a testator can allocate goods or rights, possibly outside the heirs, to third parties such as friends or a charity. In addition, a bequest can serve to relieve heirs of specific obligations, such as the maintenance of a property, by giving the right of use to another person. This allows for a more detailed and strategic distribution of the estate, tailored to the testator's personal wishes and relationships.
Claimability of a legacy
A legatee's right of action arises with the death of the testator. Acceptance of a legacy is not required for the right of action to arise, as it arises by operation of law. A legacy can be rejected by a legatee, however, this must be done in an unambiguous manner. In principle, the legacy becomes payable on the testator's death, unless the will provides otherwise. The issue of a legacy must take place within a reasonable time after the heirs have accepted their position and the estate is sufficient to cover the legacies and any debts of the testator. If the estate contains insufficient assets, the testator's creditors have priority over the legatees. Only after the debts have been paid can the legacy be made.
Het legaat wordt in beginsel opeisbaar bij het overlijden van de erflater, tenzij in het testament anders is bepaald. De afgifte van een legaat moet plaatsvinden binnen een redelijke termijn nadat de erfgenamen hun positie hebben aanvaard en de nalatenschap voldoende is om de legaten en eventuele schulden van de erflater te dekken. Indien de nalatenschap onvoldoende activa bevat, hebben de schuldeisers van de erflater voorrang op de legatarissen. Pas nadat de schulden zijn voldaan, kan overgegaan worden tot de afgifte van legaten.
In addition, the will may contain one or more conditions and/or deadlines that defer the issue of the legacy, for example if a certain time or event occurs. Heirs should carefully follow the testamentary provisions and comply with these requirements.
Consequences and options in case of non-delivery of legacy
Heirs are legally obligated to make a legacy. After all, as heirs, they are bound by the testator's last will and testament. If they fail to fulfil this obligation, they can be held personally liable for any damage suffered by a legatee due to the failure to provide the legacy. These damages may include both material and immaterial consequences, such as missing out on a sum of money or not receiving specific property.
If heirs do not voluntarily provide a legacy, the legatee can claim performance. This can initially be achieved through a formal notice of default, in which the heirs are summoned in writing to hand over the legacy within a certain period of time. This formal notice gives the heirs a last chance to fulfil their obligations before legal proceedings are initiated.
In legal proceedings, the legatee can demand fulfilment of the delivery through the court. The court can oblige the heirs to still deliver the legacy. If the heirs' negligence has caused significant damage, the legatee can in some cases also claim damages in addition to the legacy being issued.
In the case of cash legacies, the legatee can also claim interest for the period during which the issue was unlawfully delayed. This means that if the heirs have delayed the disbursement of the money legacy, they may owe interest on the amount that has been delayed.
If, despite a court judgment, the heirs still refuse to hand over the legacy, the legatee has the right to proceed with enforcement measures. This may result in the seizure of the estate's assets or, if the heirs are held personally liable, even their personal property. In this way, the legatee can enforce the right to the legacy and possibly be compensated for damages by selling the distrained property.
Limitation of a right of action
It is important for legatees to be aware of the limitation periods that apply to claiming the surrender of a legacy. A legal action to enforce a legacy is in principle time-barred after 20 years after the claim has become due and payable. The limitation period has an objective and in principle absolute character, i.e. it aims in principle at legal certainty in the short term and must be strictly adhered to. However, the Supreme Court has ruled that, in exceptional cases, it may be unacceptable by the standards of reasonableness and fairness as set out in Article 6:2 (2) of the Civil Code (ECLI:NL:HR:2021:649).
You can read the ruling here.
Conclusion
Heirs are legally obliged to provide legacies and can be held liable if they fail to fulfil this obligation. A legatee has several legal options to enforce delivery, ranging from a notice of default to court proceedings and, if necessary, confiscation. These remedies ensure that the legatee ultimately gets what he or she is entitled to, as stipulated by the testator in the will.
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