Dutch
Civil Code
Book 10 Private International Law
Article 10:142 Definitions
For the purpose of the present Title (Title 10.11):
a. the Hague Trust Convention 1985 means the
Convention on the Law Applicable to Trusts and on their Recognition, concluded
at the Hague on 1 July 1985 (Treaty Series 1985, 141);
b. trust means a trust as defined in Article
2 of the Hague Trust Convention 1985, which is created by an expression
of will (i.e. voluntarily) and evidenced in writing.
Article 10:143 Registrations on the name of the trustee
Where it concerns an asset in regard of which registrations can be made
in a register kept for this purpose pursuant to law and which asset belongs
to the assets of the trust that jointly form a separate property, the
trustee may request for a registration on his name and in his capacity
as trustee, or in such other way that the existence of the trust appears
from the registration.
Article 10:144 Recognition of a trust
Provisions of Dutch law in respect of the transfer of ownership, a security
right (collateral) or the protection of creditors in the case of insolvency
do not affect the legal effects of the recognition of a trust as specified
in Article 11 of the Hague Trust Convention 1985.
Book 10 Private International Law
Article 10:145 Applicable law
- 1. For the purpose
of the present Title (Title 10.12), the Hague Convention on Succession
1989 means the Hague Convention on the Law Applicable to Succession to
the Estates of Deceased Persons, concluded at the Hague on 1 August 1989
(Treaty Series 1994, 49).
- 2. The law applicable to succession to a
deceased’s estate shall be designated by the Hague Convention on
Succession 1989.
Article 10:146 Capacity to make a last will
- 1. The question
to what extent a natural person may make a last will (testamentary disposition),
shall be determined by his national law.
- 2. If the person involved possesses the nationality
of more than one State and his habitual residence is located in one of
these States, then the law of that State shall be deemed to be his national
law. If the habitual residence of the person involved is not located in
one of these States, then the law of the State with which he is, taken
into account all circumstances, most closely connected, shall be deemed
to be his national law.
Article 10:147 Disadvantage due to the fact that another law applies to
an asset located abroad
- 1. If one of the persons entitled to a deceased's
estate, which still has to be apportioned (wound up), is disadvantaged
as a result of the fact that the private international law of a State
where an asset is located has designated another law applicable to that
asset, then the acquisition of this asset by other persons entitled to
the estate or by third persons in accordance with that applicable law
shall be acknowledged and recognized.
- 2. De entitled person who has been disadvantaged
may, however, claim that the disadvantage suffered shall be equalized
between him and the advantaged person at the occasion of the apportionment
of the deceased's estate. An equalisation is only possible with respect
to assets of the deceased's estate or by means of a reduction of a charge
or burden imposed in relation to the succession to that estate.
- 3. For the purpose of the previous paragraphs
an entitled person means an heir, a legatee or a person who is entitled
to a performance which has to be performed by one of the persons called
to the deceased's estate as an heir or legatee.
Article 10:148 Revocation of an earlier made choice of law of the deceased
person
The revocation by the testator of all his previously made last wills (testamentary
dispositions) is presumed to include the revocation of an earlier made
designation of law governing the succession to his estate.
Article 10:149 Law applicable to the liquidation and apportionment of
the deceased’s estate
- 1. The winding up (liquidation) of the estate
of a deceased person is governed by Dutch law if the deceased had his
last habitual residence in the Netherlands. In particular are applicable,
the Dutch provisions with regard to the responsibility of the heirs, designated
as such by the law that is applicable according to the Hague Convention
on Succession 1989, for the debts of the deceased and the circumstances
in which these heirs may exclude or limit such responsibilities for themselves.
- 2. The way in which the apportionment of
the estate of a deceased person is executed, shall be governed by Dutch
law if the deceased had his last habitual residence in the Netherlands,
unless the co-proprietors of the estate have jointly designated the law
of another State. The requirements arising from the law for real property
rights of the State where the assets are located shall be taken into account.
Article 10:150 Applicable law regarding the duties and powers of a liquidator;
provisional arrangements
- 1. The duties and powers of a liquidator
appointed by the deceased person is governed by Dutch law if the deceased
person had his last habitually residence in the Netherlands.
- 2. The court may, upon a legal claim of an
interested party, make provisional arrangements to ensure the observance
of the law applicable according to the Hague Convention on Succession
1989 with regard to succession to parts of the deceased's estate located
in the Netherlands. It may order the provision of security (collateral)
in relation with that observance.
Article 10:151 Law applicable to formal requirements for a last will (testamentary
disposition)
- 1. The law applicable to the formal requirements
of a last will (testamentary disposition) shall be designated by the Convention
on the Conflicts of Laws Relating to the Form of Testamentary Dispositions,
concluded at the Hague on 5 October 1961 (Treaty Series 1980, 54).
- 2. A verbal testamentary disposition which,
except for exceptional circumstances, is made by a person of Dutch nationality
who has not also another nationality, shall not be recognized in the Netherlands.
Article 10:152 Transitional law
- 1. The Articles 10:147 up to and including
10:150 shall apply to the succession to estates of persons who have died
after 1 October 1996.
- 2. If the deceased person, at a time prior
to 1 October 1996, has designated the law applicable to the succession
to his estate, then this designation is regarded to be valid if it is
made in conformity with the provisions of Article 5 of the Hague Convention
on Succession 1989.
- 3. If parties to a contract on the succession
to a deceased's estate have designated, at a time prior to 1 October 1996,
the law applicable to that contract, then this designation is regarded
to be valid if it is made in conformity with the provisions of Article
11 of the Hague Convention on Succession 1989.
- 4. Without prejudice to the provisions of
the previous paragraphs, a designation of the law applicable to the succession
to an estate or a change in such designation, made by the deceased person
at a time prior to 1 October 1996, is not regarded to be invalid on the
sole ground that the law did not provide for such designation at that
time.
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