Voidability or nullity of the will
Doubts About the Validity of a Will
It may occur that you have doubts about the validity of a will. These doubts may concern the content of the will or the circumstances under which it was drafted.
Nullity of a Will
Under Dutch law, a will must meet certain formal requirements to be valid. Pursuant to Article 4:94 of the Dutch Civil Code, a will must be drawn up by a civil-law notary and signed by both the testator and the notary. A will may be null and void due to a formal defect.
A will may also be null and void if its contents violate public morality or public order. This means that a will must not be discriminatory or infringe upon fundamental rights. For example, if a will disinherits someone based on race or religion, this may render it null.
Another ground for nullity is if the testator was mentally incompetent (and thereby legally incompetent) at the time the will was drafted. This is a common issue in practice. It must then be assessed whether the testator was mentally competent at the time of execution. Legally speaking, this is a difficult question, as evidence regarding the testator’s mental state is often lacking. Furthermore, if the will was made many years ago, collecting such evidence may be even more challenging.
When contesting a will based on mental incapacity, it may be important to review the medical records of the testator to obtain insight into their mental state at the time the will was executed. However, strict rules apply in the Netherlands regarding access to such records, especially after the patient has passed away.
According to prevailing case law, a surviving relative or other interested party may, under certain circumstances, be granted access to the medical file of the deceased. Jurisprudence shows that a request for access must generally be substantiated with a compelling interest—for example, to demonstrate that the testator lacked mental capacity at the time the will was made. The court will weigh the deceased’s right to privacy against the interest of the petitioner.
If you have access to the testator’s medical records, a medical expert (preferably a physician registered with the Dutch Association of Independent Medical Experts (VIA)) may be asked to prepare a report regarding the testator’s mental condition. This may also be done post-mortem based on medical records and statements from treating physicians.
A will may be declared null and void by a court in legal proceedings. In such case, any prior will made by the testator may revive (if one exists), or the statutory rules of succession set out in Book 4 of the Dutch Civil Code will apply.
Voidability of a Will
A will cannot be set aside merely because an heir or third party disagrees with its contents. However, a will may be voidable if the testator acted under a mistaken assumption at the time of execution (i.e. was misled), or if there was duress or fraud.
In practice, having a will declared void can be difficult due to the lack of sufficient evidence regarding the circumstances at the time of its execution.
Need Advice?
If you would like advice on whether a will is null and void or voidable, please do not hesitate to contact the lawyers at SILK. We are happy to assist you and provide clear guidance regarding the likelihood of success of your claim.
