(Un)desirable consequences of an old will
It happens more often than you might think: an old will that still lists an ex-partner or old friend as an heir, while the deceased had since built a whole new life. Perhaps with a new partner and even children, but without the will having been amended accordingly. The big question then is: who inherits at the time of death? The old loved one or still the new family? In such cases, the will must be “interpreted” to find out what the deceased really wanted. But this is not always easy.
When is a will (un)clear?
A woman (in legal terms: “testator”) was married to Mr. A and together they had two children: B and C. After their divorce in 1976, she remarried in 1985 to Mr. D. They had no children together, but Mr. D did have a child from a previous marriage: E. On August 31, 1993, testator and Mr. D made nearly identical wills, in which they gave each other’s descendants an equal share of the estate. The only question was: who does “descendants” include? Only the children of testator and Mr. D, or also the (step) (great) grandchildren? The parties disagreed on this issue, so the court had to address it.
What did the judge find?
According to the law (Article 4:46 BW), a will must be interpreted in two steps:
- Is the will unclear?
This is determined not only by looking purely at the text. Even if the words seem clear at first glance, one must look at what the deceased probably meant and under what circumstances the will was drafted. - What was the intention of the deceased?
If the text is not clear enough, what the deceased himself said or did around the drafting of the will may be looked at. Only if that does not provide sufficient clarity, may one look to what the deceased later said about his or her wishes.
In this case the court did find the will clear: by “descendants” the testator had meant not only her (step) children, but also the (step) (great) grandchildren. This meant that the inheritance went not to three, but to eleven (!) heirs, who all received an equal share. But did the deceased really want it that way? That remains an open question.
Inheritance Law Day: ‘Explanation of wills’
On Tuesday, March 18, it is the Day of Inheritance Law. To mark the occasion, VEAN (Vereniging Erfrecht Advocaten Nederland), the vFAS (Nederlandse vereniging Familie- en Erfrecht Advocaten Scheidingsmediators) and the EPN (Vereniging van Estate Planners in het Notariaat) are organizing the annual Inheritance Law Symposium. This year it’s all about the interpretation of wills – a topic that can have major consequences for heirs. Together with Kim van der Bijl, I will be there to follow the latest developments!
In conclusion
Want to learn more about explaining wills, or have another question about inheritance law? Then contact Kimberly Rozema, Kim van der Bijl or one of our other inheritance law specialists. We will be happy to help you!
