Will and divorce

Questioner

During a relationship between Mrs. CKA and the testator, the testator made a will stating: I appoint Mrs. CKA……, with whom I live in a joint household, as sole heiress of my entire estate. Mrs. CKA no longer had a relationship with the testator (ex-partner) when he died. My question is: Is the will still valid, and if so, is Mrs. CKA still an heir? According to a notary, Mrs. CKA is no longer an heir because she no longer had a relationship with the testator. According to juridischloket.nl, what the notary says is not correct. However, after a divorce, a previously drawn up will does not expire by operation of law. I personally read on some notary websites, among other things: Inheritance After a divorce, a previously drawn up will does not expire by operation of law. The law does not regulate this. If you have not drawn up a will, then the heirship of your ex-partner will expire after a divorce. This means that your ex-partner will no longer inherit from you. However, if you do have a will, then the provisions in the will regarding your ex-partner will not change due to a divorce. You are divorced. Will the inheritance still go to your ex? Yes, that may be true. A divorce does not automatically invalidate your will. Read your ex's will What is the text you are looking for in the will? Some wills speak about leaving a legacy to the spouse or partner. If the spouse is no longer a spouse, or if divorce proceedings are pending, the inheritance lapses. A similar provision exists for the partner you live with. But beware! If there is no provision in the will that the inheritance does not apply if you are separated, then that will remains applicable. Because there is no legal regulation that wills change through divorce.

Lawyer

Madam, the ex-partner has not been appointed in her capacity as partner (by registered partnership or marriage). The special status is not relevant and she is an heir in a personal capacity. If something is unclear or it is not immediately clear what the testator intended and wanted at the time, the intention will have to be determined.

Questioner

Thank you very much for your answer. Additional question: at the termination of the relationship it was notarially agreed: -the parties intend to end their cohabitation for reasons that are compelling to them and to sell the home. -as soon as both the man and the woman actually and permanently leave the home, it will be sold and the net proceeds from the sale will be divided equally between the parties. However, the house has not been sold to date, because the deceased lived in it himself and is now rented out. Mrs. CKA lives at another address. The question now is: does this agreement have any consequences for Mrs. CKA's heirship?

Lawyer

Was there a registered and dissolved partnership or cohabitation agreement? If not 20 years ago, in the first case this lady can still force the sale of the house, also with regard to the other heirs, in the second case it is more difficult. The existence of the agreement (end of cohabitation/end of grp) can color the intention of the previous will, because it proposes a division that, depending on the number of heirs with a child's share, can be different than if the will were followed. Depending on the question of whether the lady can still assert her rights and whether she is an heir. This must therefore be clarified, whether or not in a lawsuit.

Questioner

Thank you very much for the quick response. There was no registered partnership or cohabitation agreement and the sales agreement was made more than 20 years ago. How can the lady have it determined whether she is still an heir? What is the procedure if the judge has to assess this. Through a notary, the answer is negative in advance. Thank you in advance.

Lawyer

There is a will register, the will states the following: I appoint Mrs. CKA……, with whom I live in a joint household, as sole heiress of my entire estate. As far as I am concerned this is clear. Mrs. is in principle an heir, that must be weighed against the other meaning of division during life. That would be important if there are heirs with a child's share because after 2003 the inheritance law changed. So that can still play a role. That is why it is advisable to get a second opinion from a notary.

Questioner

Thanks for the answer. Additional question: Does Article 4:52 of the Dutch Civil Code not apply to Mrs CKA? Book 4 Article 52 (4:52 BW) Expiration of decision A disposition made in favour of the person to whom the testator was married or to whom he had already exchanged marriage vows at the time the will was made shall lapse if a divorce or legal separation occurs thereafter, unless the contrary can be inferred from the will itself.

Lawyer

It is precisely in that last sentence the designation in person. What was the intention at that time? To designate an heir in person or capacity/status.