This article from GMW – Attorneys at Law deals with an unlikely, terrible scenario: What happens in the unfortunate case that you or your partner should come to pass away whilst you are in Holland? Is the last will and testament made up in another country valid? Will the content of your will be followed here in the Netherlands?
Recognition
Your last will and testament will be recognized in The Netherlands if the formalities which are prescribed by the law of the country in which you had your normal place of residence at that time have been complied with. One of the most common conditions abroad is that if the will has been handwritten by the testator him or herself, it has to be dated. Sometimes an extra condition is that there has to be witness present, who also has to sign the document.
If you do not have a last will and testament yet, you can make one here. Dutch law requires that the will be drawn up by a notary. Which law will apply? In principle, the settlement and the division of the inheritance will be ruled by Dutch law. This rule comes from the Convention on the Law Applicable to Succession to the Estates of the deceased persons (August 1st, 1989). Even if your country is not a member of this treaty, Dutch law will apply.
For the division of the assets, the sharers can jointly choose to apply the law of another country. It is also possible for the testator to choose a different law beforehand in the will itself. For this you need to go to a notary. The choice is only valid if it concerns the law of the land of which:
– you have the nationality at the time you make the choice;
– you have the nationality at the time of your death;
– you habitually resided at the time of your choice;
– you habitually resided at the time of your death.
Should your last will and testament already contain a choice for a certain law, then this law will be applicable as long as your choice was made in compliance with the formalities in the country in which the will was drawn up. Unfortunately a choice for a certain law made in The Netherlands does not always have effect in other countries. This could be the case when that country is not a member of the abovementioned treaty.
Content
Dutch law In general your last will and testament will be able to be executed under Dutch law unless the will contains provisions which are contrary to Dutch law. This could be the case for a ‘share-testament’, which dictates that the daughters will get half of what the sons inherit. This is not allowed in The Netherlands. According to Dutch law it is possible to disinherit your child, but he or she could still claim his or her ‘legitimate portion, as it is called here.
To be absolutely sure your last will and testament will be carried out as you wish, it is wise to have the content checked by a lawyer or a notary. If necessary, changes can be made.
For more information, contact us at the telephone number mentioned below or go to the English version of our website at www.gmw.nl .
Marieke Morshuis
m.morshuis@gmw.nl
