Dutch Civil Code

Book 4 Law of Succession

Title 4.4 The last will of the deceased

Section 4.4.1 The last will in general

Article 4:42 The last will of the deceased
- 1. A 'last will' is a one-sided (unilateral) juridical act with which the testator makes a disposition that is to be effective after his death and that is regulated in Book 4 of the Civil Code or is recognized by law as an act with such result.
- 2. The testator may always unilaterally revoke his earlier made last will.
- 3. A testamentary disposition can be made and revoked only by last will and only by the testator in person.

Article 4:43 Defective will (intention)
- 1. A last will cannot be nullified on the ground that it has been made under the influence of an abuse of circumstances.
- 2. A last will, made under influence of a wrong motive, can only then be nullified when the circumstance, of which the testator falsely assumed that it existed and which had moved him to make the disposition, is indicated in the last will itself and the testator would not have made this disposition if he would have known that his assumption was incorrect.
- 3. A last will cannot be nullified on the ground of threat, fraud or a wrong motive when the testator has confirmed his last will after the influence of the threat has stopped or after the fraud or wrong motive has been discovered.

Article 4:44 Last will that is in conflict with public morality or public order
- 1. A last will is null and void if its content is contrary to public morality or public order.
- 2. A last will is null and void if a decisive motive for making it is contrary to public morality or public order, provided that this motive is mentioned in the last will itself.

Article 4:45 Invalid conditions and testamentary obligations in a last will
- 1. Where a condition or testamentary obligation in a last will is impossible to fulfil or is contrary to public morality, public order or a mandatory rule of law, it is deemed not to have been written. Such a condition or testamentary obligation makes the last will itself, however, not null and void, unless it was the decisive motive of the testator for making this last will.
- 2. Where a condition or testamentary obligation in a last will necessarily implies the exclusion (elimination) of someone's power of disposition over assets (right to convey property), it is deemed not to have been written.

Article 4:46 Interpretation of a last will
- 1. When interpreting the content of a last will, attention has to be paid to the relationships for which the last will apparently wants to make an arrangement as well as to the circumstances under which the last will was made.
- 2. Actions or statements of the testator that are not included in the last will itself can only be used for interpretation if without those actions or statements the content of the last will does not have a clear meaning.
- 3. When the testator has obviously made a mistake when pointing out a person or an asset, the disposition will be carried out in accordance with the intention of the testator, if that intention can be determined unambiguously from the last will itself or from other information.

Article 4:47 Execution of the last will is permanently impossible
When it is definitely impossible to carry out the last will of the testator for another reason than an event that has occurred after the death of the testator, the last will ceases to exist without being replaced by another disposition, unless the law provides for the contrary or from the last will itself can be deduced that the testator would have made this other disposition if he would have been aware of the impossibility.

Article 4:48 Accretion of shares in the deceased's estate
When a last will calls two or more persons to the estate as heirs, whether or not for certain shares, and the disposition has for one of them no effect, then his share shall accrue to the shares of the other heirs in proportion to the shares to which these heirs are entitled by virtue of law or the last will, unless the contrary may be deduced from the last will itself.

Article 4:49 When a bequeathed asset is missing
- 1. A bequest of a specified asset or of a right that has to be established on such a specified asset, incumbent on an heir due to a provision in the last will of the testator, ceases to exist if this asset is not present in the estate of the testator at the moment on which his estate devolves, unless from the last will itself can be deduced that the testator nonetheless wanted such a disposition.
- 2. When it may be deduced from the last will itself that the testator nonetheless wanted the disposition, but the heir who has to fulfil this obligation is not able to provide the bequeathed asset or only at disproportionally large expenses, this heir has to pay out the value of that asset.
- 3. For the purpose of paragraph 1 an asset is considered to be not present in the estate of the testator if the testator had an obligation to transfer it to a third person and his death has not resulted in the ending of that obligation.

Article 4:50 Delivery of a bequeathed asset in its condition at the death of the testator
- 1. Unless the testator has made another disposition, a bequeathed asset is delivered in its condition at the time of death of the testator.
- 2. Consequently the involved heir is not compelled to discharge the bequeathed asset from any limited property right established on it.
- 3. When a debt-claim of the testator against an heir, when a limited property right of the testator on an asset of an heir or when an asset of the testator that is encumbered with a limited property right of an heir has been bequeathed [to a legatee], then no intermixture takes place, unless the bequest is renounced [by the legatee].

Article 4:51 Bequeathing an asset from a marital community of property
- 1. Where a deceased spouse has made a bequest in his last will in which he has instructed the joint heirs to bequeath a specified asset out of the marital community of property to a certain legatee, this legatee may claim the delivery of the entire asset, yet the joint heirs may, as far as this asset has been apportioned to the other spouse or his heirs at the apportionment of the marital community of property, pay the value of that asset to the legatee. This right belongs as well to the other spouse if he is the sole heir and, if he had died, to his heirs.
- 2. The previous paragraph shall only apply if the marital community of property was not yet dissolved at the moment on which the disposition was made.

Article 4:52 Disposition in favour of the spouse and a later divorce of legal separation
A testamentary disposition, made in favour of the person with whom the testator was married at the time on which he made his last will or towards whom he already had made a marriage vow at that moment, becomes extinguished by a later divorce or legal separation, unless the contrary may be deduced from the last will itself.

Article 4:53 Blood relatives and next of kin
A last will made in favour of the closest blood relatives or the closest next of kin of the testator, without further indication of their names or identity, is regarded to have been made in favour of the blood relatives of the testator who otherwise would have been called as heirs to the estate under the law of intestate succession, each in proportion to his intestate share.

Article 4:54 Prescription in case of a voidable last will
- 1. A right of action to nullify a voidable last will becomes prescribed on the expiry of one year after the moment on which the person who may exercise this right or his legal predecessor has become aware of both, the death of the testator and the ground of voidability.
- 2. In situations not covered by Article 3:51 paragraph of the Civil Code, the right to invoke a ground of voidability to nullify a voidable last will becomes prescribed on the expiry of three years after the moment on which the person who may exercise this right or his legal predecessor has become aware of both, the death of the testator and his last will.

Section 4.4.2 Persons who can make a last will and persons who may benefit from it

Article 4:55 Legal capacity to make a last will
- 1. A last will can be made by persons who in general have the legal capacity to perform juridical acts as well as by minors who have reached the age of sixteen and persons who are placed under adult guardianship for another reason than because of a physical or mental condition.
- 2. A person who is placed under adult guardianship because of his physical or mental condition may only make a last will with authorisation of the Subdistrict Court. The Subdistrict Court may subject its authorisation to additional conditions.
- 3. The legal capacity of the testator shall be determined on the basis of his mental state at the moment on which he made his last will.

Article 4:56 An heir must exist at the time of the devolvement of the estate
- 1. In order to derive a right from a last will a person must exist at the moment on which the estate of the testator devolves. Rights from a last will in favour of a legal person who itself does not exist anymore at that moment as a result of a merger or split off, belong to the acquiring legal person or, in case of a split off, to the acquiring legal person in whose notarial deed, in which the split off was executed, is regulated that he will acquire such rights. If it is not possible to determine by means of this notarial deed which legal person shall acquire such rights instead of the split off legal person, Article 2:334s of the Civil Code shall apply accordingly.
- 2. If a testator has stipulated in his last will that what he leaves to a descendant of one of his own parents, will be left at the death of this descendant or at an earlier moment, by right of representation and share and share alike (‘per stripes’), to the already born children of this descendant, then these children may derive this right from the last will even when they were not yet born at the time that the testator died.
- 3. When a testator has stipulated that what he leaves to someone, will be left at the death of this person or at an earlier moment to the already born descendents of one of the parents of the testator, and also that, when this descendent is no longer alive at that time, that the descendents of this descendent will take his place by right of representation, share and share alike (‘per stripes’), then these descendents may derive this right from the last will even when they were not yet born at the time that the testator died
- 4. When a testator has stipulated that the remaining part of what he has left under his last will to a specific person, must be left at the death of this person or at an earlier moment to a then living blood relative of the testator, then this blood relative may derive this right from the last will even when he was not yet born at the time that the testator died.

Article 4:57 No last will in favour of a family guardian
- 1. A testator cannot make a last will in favour of a person who is his family guardian at the moment on which this last will is made.
- 2. A person who has been the family guardian of the testator cannot enjoy an advantage from this testator's last will if the testator has died within one year after he has reached the age of eighteen at a moment on which the financial records of the guardianship had not yet been closed.
- 3. The previous paragraphs do not apply to blood relatives of the testator in the ascending line who are or have been his family guardians.

Article 4:58 No last will in favour of a tutor
Minors cannot make a last will in favour of a tutor with whom they live together at the moment on which this last will is made.

Article 4:59 No last will in favour of professionals in the field of individual healthcare
- 1. Persons who practise a profession in the field of individual healthcare and who have nursed the testator during the illness which has caused his death as well as persons who, on account of their post or function, have provided mental care or support during this illness to the testator, cannot enjoy an advantage from the last will of the testator if that last will is made during the time they nursed or supported him.
- 2. A person who exploits an institution for the normal care and nursing of elderly persons or of persons with a mental disorder, and a person who is in charge of or working at such an institution, cannot enjoy an advantage from the last will of such an elderly or mental disordered person if that last will is made during the time that this person stayed in this institution.

Article 4:60 A compensation for rendered services is allowed
From the provisions of the two previous Articles are excluded:
a. dispositions made by means of a bequest with the intention to grant a compensation for rendered services, however with due observance of both the solvency of the testator and of the services rendered to him;
b. dispositions made in favour of someone who is a relative by blood or marriage up to the fourth degree or who is the spouse of the testator.

Article 4:61 No last will in favour of the involved notary and witnesses
The notary or another person who has made a last will or a deed for safekeeping a not closed and therefore not covert last will as well as witnesses who were present when such a last will or deed was made, cannot enjoy an advantage from that last will.

Article 4:62 Nullification of a last will that is voidable on the basis of the previous Articles
- 1. A last will in conflict with one of the provisions of Article 4:57 up to and including 4:61, may be nullified. The nullification shall only have effect as far as this is necessary to undo the disadvantage suffered by the person who has invoked this ground of voidability.
- 2. A last will in favour of an intervening person may equally be nullified as one in favour of a person who himself is excluded by Article 4:57 up to and including 4:61 to enjoy any advantage from a last will.
- 3. The father, the mother, the descendants and the spouse of an excluded person are considered to be an intervening person, except if they are a blood relative in the direct line of the testator or the spouse of the testator.
- 4. If a legatee is obliged to fulfil a counter performance in relation to a bequest which is voidable under the previous paragraphs, then Article 3:54 of the Civil Code shall apply accordingly.

Section 4.4.3 Share of a forced heir

Subsection 4.4.3.1 General provisions

Article 4:63 Mandatory legitimate share (‘forced share’) of a forced heir
- 1. A forced share of a forced heir is a part of the value of the estate of the testator to which the forced heir may lay a claim in spite of testamentary dispositions made under the last will of the testator and gifts (donations) made by the testator during his life
- 2. Forced heirs are the descendants of the testator who are called by law to his estate as his intestate heirs, either on account of their own right or on account of a right of representation of an heir who is not alive anymore or who is unworthy at the moment of the devolvement of the estate.
- 3. A forced heir who renounces the inheritance, loses his right to a forced share, unless he states that he wishes to receive his forced share when he makes a declaration as meant Article 4:191.

Article 4:64 The size of a forced share
- 1. The forced share of a child of the testator amounts to one half of the value of the testator’s estate over which all forced shares are calculated, divided by the number of intestate heirs that the testator has left behind as mentioned in Article 4:10 paragraph 1 under point (a).
- 2. Where a child of the testator is not alive anymore at the moment of the devolvement of the testator’s estate, the descendents of this child are jointly counted in for the purpose of paragraph 1 as one child that is left behind by the testator. Descendants of a child of the testator who are forced heirs may each claim just their own forced share.

Subsection 4.4.3.2 The extent of a forced share

Article 4:65 Calculation of the forced shares
The forced shares are calculated over the value of the assets of the estate of the testator, which value is increased with the gifts that have to be taken into account when making this calculation and which value is reduced with the debts of the estate mentioned in Article 4:7 paragraph 1 under point (a) up to and including point (c) and point (f). Gifts from which debts as meant in Article 7 paragraph 1 under point (i) arise, are not taken into account.

Article 4:66 Gifts which are not taken into account
- 1. For the purpose of this Subsection, gifts shall be appreciated (valuated) to the time of their performance, with the exception of what is provided in the following paragraphs. The possibility that the testator could have revoked a gift is not taken into account.
- 2. Gifts made by the testator with regard to which he has reserved the right to enjoy the donated asset himself during his life and other gifts of which the receiver will only enjoy the benefit in full after the death of testator, shall be estimated to their value immediately after the testator’s death. The same applies to gifts of performances which the testator has not yet carried out at the moment of his death, on the understanding that these gifts, as well as the debts which are linked to it, are not taken into account as far as the testator’s estate is insufficient. A gift consisting of an appointment of someone as the beneficiary of a capital sum insurance policy, is taken into account to its value in accordance with Article 7:188 paragraphs 2 and 3 of the Civil Code.
- 3. Gifts consisting of the alienation of an asset by the testator for which the receiver (donee) has to provide a counter performance by means of a right that is connected to the life of the testator, shall be appreciated (valuated) as a gift of that asset, reduced by the value of the counter performance which the testator has received or which is still chargeable to him at the moment of his death, as far as this counter performance consists of something else than of making it possible for the testator to use the involved asset.

Article 4:67 Gifts which are taken into account when calculating forced shares
In calculating the forced shares of the forced heirs the following gifts, made by the testator, are taken into account:
a. gifts which are obviously made and accepted with the prospect that they will cause a disadvantage to the forced heirs;
b. gifts which the testator could have revoked at all times during his life or which he explicitly has submitted to a possible abatement when he made the gift;
c. gifts of which the benefit is intended to be enjoyed only in full after the death of the testator;
d. gifts, made by the testator to a descendant, provided that this person or his descendant is a forced heir of the testator;
e. other gifts as far as the performance of the obligation arising from the gift has been carried out five years before the death of the testator.

Article 4:68 Gifts of the testator to his spouse
For the purpose of this Subsection, gifts of the testator to his spouse are not taken into account as far as there has been no enrichment at the cost of the property of the testator because the testator and his spouse were married in a community of property when the gift was made or they were at that moment bound towards each other by marital equalisation obligations pursuant to a nuptial agreement.

Article 4:69 Gifts which aren’t regarded as gifts
- 1. For the purpose of this Subsection, the following gifts are not taken into account:
a. gifts to persons with respect to whom the testator by moral standards is obliged to contribute to their maintenance during his lifetime or after his dead, as far as they can be regarded as the result of that natural obligation and as far as they were in agreement with the income and property of the testator;
b. usual gifts as far as they were not excessive.
- 2. Paragraph 1 does not apply to gifts as meant in Article 4:7 paragraph 1 under point (i).

Article 4:70 Imputation of gifts
- 1. The value of gifts, made by the testator to a forced heir, will be deducted from his forced share.
- 2. For the purpose of the previous paragraph, gifts to a descendant who would have been a forced heir if he would have lived longer than the testator or if he would not have been unworthy to obtain from the testator’s estate, are regarded as gifts to the forced heirs of this descendant, proportionally to their forced share.
- 3. With a gift is equated what a forced heir receives or may receive from a capital sum insurance policy, not being a pension insurance, which the testator had entered into in order to comply with a natural obligation towards this forced heir and which becomes payable at the death of the testator.

Article 4:71 Imputation of what is obtained under the law of succession
The value of what a forced heir already has obtained from the estate of the testator under the law of succession, is deducted from his forced share.

Article 4:72 Impact of a rejection of the inheritance
If the forced heir has renounced the inheritance, then the value of what he could have obtained from the estate of the testator as an heir is deducted from his forced share, unless:
a. the assets were left to him under a condition, a testamentary obligation or the institution of a fiduciary administration of property of an appointed legal administrator or;
b. one or more bequests were made that have to be settled by and for account of the forced heir and which compels him to carry out another performance than the payment of a sum of money or the transfer of an asset from the estate of the testator.
In order to be able to appeal to the exceptions under point (a) or point (b) of the present Article, the renouncement of the inheritance by the forced heir must have taken place within three months after the testator's death.

Article 4:73 Impact of the renouncement of a bequest by a forced heir
- 1. The value of a bequest, made to a forced heir, of a specific sum of money or of assets, not being debt-claims, of the estate of the testator, will be deducted from his forced share when he has renounced this bequest, unless:
a. the bequest is made under a condition, a testamentary obligation or the institution of a fiduciary administration of property of an appointed legal administrator;
b. the bequest is made subject to one or more sub-bequests which have to be settled by and for account of the forced heir and which compels him to carry out another performance than the payment of a sum of money or;
c. the bequest will be due and demandable (exigible) later than six months after the death of the testator or, when the forced heir is a co-heir, will become due and demandable only after the estate of the testator has been apportioned or;
d. the bequest has to be settled by and for account of one or more heirs whose shares in the estate of the testator are insufficient to satisfy the bequest from;
and the renouncement has taken place within three months after the death of the testator.
- 2. Where the testator has denied the forced heir the right meant in Article 4:125 paragraph 2, the forced heir may nevertheless renounce the bequest within three months after the death of the testator without the result that the value of that bequest is deducted from his forced share.

Article 4:74 Bequest to a forced heir of a payment in instalments
- 1. The cash value of a bequest, made to a forced heir, of a sum of money which is to be paid to him in instalments, will in the event of a renouncement be deducted from his forced share if the last will provides that without such a disposition [this is to say when the full sum had to be paid at once] the continuation of the testator's professional practice or business would become seriously hampered. With a professional practice or business of the testator is equated an enterprise that is run by a public limited company [Naamloze Vennootschap] or a private limited company [Besloten Vennootschap] of which the testator was a director and in which he held, solely or jointly with the other directors, the majority of the shares.
- 2. Where the ground stated by the testator in his last will [ï.e. continuation of the enterprise would be seriously hampered without a periodically paid disposition], is incorrect, the forced heir may declare within three months after the testator's death that he demands the payment of the cash value at once in a lump sum. The person who persists that this ground is correct, must prove so. If the stated ground is correct, yet it allows an earlier payment than by way of instalments as provided for in the bequest, the court may change the obligation from the bequest in that sense.
- 3. If the forced heir requests within three months after the testator's death that the heirs who are charged with the settlement of the bequest provide security for their obligation, then the Subdistrict Court may order that they have to give such security on behalf of the forced heir. The Subdistrict Court determines the nature of the security to be provided and the amount for which it is to be given. Where the ordered security is not given within the period set for this purpose by the Subdistrict Court, the bequest will not be deducted from the forced share when the forced heir renounces it after all.

Article 4:75 Fiduciary administration of property imposed by the testator in his last will (testamentary administration)
- 1. The value of what the forced heir could have acquired under the law of succession subject to a fiduciary administration of property of an appointed legal administration that has been instituted by the testator in his last will, will - also in the event of a renouncement - be deducted from his forced share if the fiduciary administration of property, according to a statement in the last will itself, has been instituted on the ground:
a. that the forced heir is incompetent or unable to provide for the administration (management) of the obtained assets himself or;
b. that without the fiduciary administration of property mainly the creditors of the forced heir would benefit from the obtained assets.
- 2. The forced heir who has accepted the inheritance or bequest is entitled, within three months after the testator's death, to dispute the correctness of the stated ground as referred to in the last will; in that case the person who persists that this ground is correct, must prove so. If the stated ground is correct, yet it does not justify the rules which the testator has set for the fiduciary administration of property, then the court may change these rules or even lift them partially.
- 3. If the stated ground is incorrect, then the forced heir may, within one month after the judicial decision in which the incorrectness has been established has become final and binding, notify the legal administrator in writing that he wishes the payment of his forced share in money. As far as this is necessary to make that payment, the legal administrator realizes the assets subject to administration with corresponding application of Article 4:147. He distributes the remaining assets to the persons to whom these assets would have belonged if the forced heir would have renounced the inheritance or bequest.
- 4. When the value of the assets subject to administration is deducted from the forced share on the basis of Article 4:70 and the last will, in which the fiduciary administration of property was instituted, states a ground as meant in paragraph 1, then paragraph 2 and 3 shall apply accordingly. Where the last will does not state a ground as meant in paragraph 1, the forced heir may claim his forced share in money in the way provided for by paragraph 3, on the understanding that the declaration meant in paragraph 3 must be made within three months after the testator's death.
- 5. In determining the value of the forced share, the instituted fiduciary administration of property itself shall only be taken into account if the stated ground is declared to be incorrect and the forced heir did not, in spite of this incorrectness, exercise the right that is granted to him in paragraph 3, first sentence.

Article 4:76 Specific usufructs are not taken into account in determining the value of the forced share
In determining the value of what in accordance with Article 4:70 up to and including 4:75 is deducted from the forced share, a usufruct on that property shall be taken into account as an element which reduces the value of the forced share, unless it concerns a usufruct that is established pursuant to Subsection 4.3.1 or 4.3.2.

Article 4:77 Extension of periods
The periods mentioned in Article 4:72, 4:73 paragraph 1, last part of the sentence, and paragraph 2, 4:74 paragraph 2 and 3 and 4:75 paragraph 2 and 4 may be extended by the Subdistrict Curt several times on the basis of particular circumstances, even at a moment on which the period already was expired.

Article 4:78 Right of inspection and information
- 1. A forced heir who is not called to the estate of the testator as an heir, is entitled towards the heirs and the personal representatives charged with the administration of the testator's estate to inspect all documents he needs in order to determine his forced share and to obtain an exact copy of these documents; if he desires so, the heirs shall supply him all information necessary to this point.
- 2. Upon the request of the forced heir, the Subdistrict Court may call to court one or more of the heirs and one or more of the personal representatives charged with the administration of the testator's estate in order to confirm under oath, in the presence of the applicant (forced heir), the soundness of the inventory taken of the estate.

Subsection 4.4.3.3 Realisation of the forced share

Article 4:79 Claim against the joint heirs or a donee
With regard to his forced share the forced heir may obtain a claim:
a. against the joint heirs or against the spouse of the testator: by claiming his forced share in accordance with Article 4:80 paragraph 1, or;
b. against a donee: by an abatement made pursuant to Article 4:89.

Article 4:80 Persons responsible (liable) for the debt-claim of the forced heirs
- 1. A forced heir who claims his forced share obtains, with regard to what is due to him on account of Articles 4:70 up to and including 4:76, a financial debt-claim against the joint heirs or, when the testator’s estate has been apportioned in accordance with Article 4:13, against the spouse of the testator who is left behind as his heir.
- 2. The heirs and, after an apportionment in accordance with Article 4:13, the spouse are not compelled to satisfy the debt-claim of the forced heirs as far as it exceeds, in total, the value of the testator's estate; insofar necessary the debt-claim will be reduced proportionally. ‘The value of the estate’ means the value of the assets of the estate of the testator, reduced with the debts of the estate mentioned in Article 4:7 paragraph 1 under point (a), point (b), point (c) and point (f).

Article 4:81 Moment on which the debt-claim of the forced heir becomes due and demandable (exigible)
- 1. The debt-claim of a forced heir shall not be due and demandable (exigible) before six months have passed since the testator's death.
- 2. If the testator's estate has been apportioned in accordance with Article 4:13, the debt-claim shall be due and demandable (exigible), insofar necessary even contrary to paragraph 1, as soon as:
a. the spouse gets bankrupt or falls under the Debt Repayment Scheme for Natural Persons;
b. the spouse dies.
Insofar the debt-claim of the forced heir shall be performed (satisfied) at the expense (for account) of a bequest that was made to another person than the spouse, the first sentence shall never have the effect that the debt-claim becomes due and demandable (exigible) at a later moment than the date resulting from paragraph 1.
- 3. The debt-claim shall not be due and demandable (exigible) as long as the assets of the testator's estate still may be encumbered with a usufruct pursuant to Article 4:29 or Article 4:30. For the purpose of the first sentence, Article 4:31 paragraph 4, first sentence, is not taken into consideration.
- 4. As long as there exists a usufruct pursuant to Article 4:29 or Article 4:30, the debt-claim shall not be due and demandable (exigible) as far as the spouse is liable for this claim. The debt-claim, however, becomes due and demandable (exigible) as soon as the spouse gets bankrupt or falls under the Debt Repayment Scheme for Natural Persons, as far as the spouse is liable for this debt-claim.
- 5. As far as other persons than the spouse are liable for the debt-claim, the forced heir may only - as long as there exists a usufruct pursuant to Article 4:29 and Article 4:30 - demand from each of these persons payment of the part of the debt-claim that corresponds with the part of the share of each of these persons in the assets of the testator's estate not subject to usufruct.
- 6. When the debt-claim of the forced heir, meant in Article 4:80 paragraph 1, has become due and demandable (exigible) because the spouse has fallen under the Debt Repayment Scheme for Natural Persons, then it will not, as far as it remained unpaid, become due and demandable (exigible) again when the Dept Repayment Scheme for Natural Persons has ended by virtue of Article 356 paragraph 2 of the Insolvency Act. Article 358 paragraph 1 of the Insolvency Act is not applicable to a debt-claim of a forced heir.

Article 4:82 Non-demandability clause
The testator may include in his last will the condition that the claim of a forced heir, as far as it has to be performed (satisfied) at the expense (for account) of the spouse, will only become due and demandable (exigible) after the death of that spouse; such a condition can be stipulated only in favour of a spouse from whom the testator is not legally separated. A condition as meant in the previous sentence can be stipulated in a corresponding way for a disposition in favour of another life companion of the testator, provided that this other life companion maintained a joint household with the testator and that he and the testator had entered into a cohabitation agreement that is documented in a notarial deed.

Article 4:83 Other circumstances affecting the moment on which the debt-claim becomes due and demandable
To the extent that the debt-claim of a forced heir has to be performed (satisfied) by the testator's spouse or by his life companion as meant in Article 4:82, second sentence, the testator may specify in his last will other circumstances than those laid down in Article 4:81 paragraph 2 and Article 4:82 that affect (postpone) the moment on which the debt-claim of the forced heir becomes due and demandable (exigible).

Article 4:84 Interest on a non-demandable debt-claim of a forced heir
The non-demandable debt-claim of a forced heir is increased by an interest rate, yet only if and to the extent that the statutory interest rate exceeds 6 %, on the understanding that the interest in such an event shall be calculated once a year as of the day on which the forced heir has claimed his forced share and that it shall be calculated each time solely over the principal sum.

Article 4:85 Statutory time limits for the claim of a forced heir
- 1. The right to claim a forced share ceases to exist if the forced heir has not made clear, within a reasonable period that is set for this purpose by an interested party, but at the latest within five years after the testator's death, that he wants to receive his forced share.
- 2. If nine months after the testator's death it still has not been established to what extent his spouse will claim a usufruct pursuant to Article 4:30, then this part of the claim of the forced heir ceases to exist insofar it has to be performed (satisfied) by the spouse, unless within that period the forced heir has made clear towards the spouse that he wants to receive his forced share. Article 4:77 applies accordingly to this period.

Article 4:86 Presumption of death of the testator
Where Section 1.18.2 or 1.18.3 of the Civil Code is applicable to the deceased testator, the periods mentioned in Article 4:81 paragraph 1 and Article 4:85 paragraph 1 and 2, start to run from the day on which the court order, meant in Article 1:417 paragraph 1 or Article 1:427 paragraph 1 of the Civil Code, has become final and binding.

Article 4:87 Abatement ranking order
- 1. Debts to forced heirs are paid off firstly from the part of the estate of which the testator has not specifically disposed of in his last will on behalf of an appointed heir or legatee. However, the payment of a debt to a disinherited forced heir who nevertheless claims his forced share, but who is replaced in the estate by his descendants by way of representation, is paid off firstly from the share in the estate of this descendants, unless something else results from the testator's last will.
- 2. If an abatement in accordance with paragraph 1 is insufficient to satisfy the debt-claims of the forced heirs, then the testamentary dispositions to the heirs and legatees are abated. Unless something else results from the last will, all inherited shares and bequests will be abated equally in proportion to their value, on the understanding that as far as a testamentary disposition is regarded to have been made to comply with a natural obligation of the testator, it shall only after the other testamentary dispositions be taken into account in the abatement.
- 3. The part of the testator's estate to which another forced heir is entitled and that does not exceed his forced share, may - in derogation from paragraph 1 and 2 - only be abated at the very last. The abatement of that part shall then be made after deduction of the debt-claim of the forced heir for which this specific abatement is made, and this in such a way that both forced heirs at the end will obtain the same proportional part of their forced shares.
- 4. The abatement of a bequest is effectuated by a declaration to the legatee, made by the heirs who are charged for the debt-claim of the forced heir or, if the testator's estate has been divided and apportioned in accordance with Article 4:13, by the spouse of the testator. Article 4:120 paragraph 4, second sentence, applies accordingly.
- 5. As far as a debt to a forced heir has to be paid from the share in the estate of the spouse or other life companion of the testator and the moment on which this debt will become due and demandable still has to be determined on the basis of Article 4:81 paragraph 2, 4:82 or 4:83, the spouse or the other life companion is liable for it with his entire property, even if he had accepted his inheritance under the condition that the value of the assets of the deceased's estate will exceed its debts.
- 6. As far as a debt to a forced heir has to be paid from a bequest that the testator made to his spouse or other life companion under reservation of a condition as meant in Article 4:82 or 4:83 [non-demandability clause], this debt shall become incumbent, subject to the same condition, on the spouse or other life companion as soon as the bequest is executed (performed) on behalf of the spouse or other life companion and a declaration has been made in accordance with paragraph 4.
- 7. For the purpose of the present Article a testamentary obligation which necessarily implies the delivery of money or assets from the testator's estate is equated with a bequest.

Article 4:88 Payment of taxes
As far as the debt-claim of a forced heir is not due and demandable (exigible) in consequence of Article 4:81 paragraph 2 or a condition as referred to in Article 4:82, the spouse or the life companion meant in Article 82 is obliged to pay the tax that is levied on the forced heir for the acquisition of his debt-claim, if the forced heir requests so. The debt-claim of the forced heir is reduced with the amount that is paid on his behalf pursuant to the first sentence.

Article 4:89 Abatement of gifts
- 1. If what a forced heir may obtain on the basis of his debt-claim as referred to in Article 4:80 paragraph 1, is insufficient to provide him his forced share, then he may abate the gifts that are eligible for abatement, as far as they are detrimental to his forced share. At determining the debt-claim, meant in the first sentence, any possible reduction pursuant to Article 4:80 paragraph 2 and 4:87 paragraph 3 is taken into account. The increase, meant in Article 4:84, as well as the part of the debt-claim that has ceased to exist due to Article 4:85 paragraph 2, are not taken into account.
- 2. The gifts referred to in Article 4:67 may be abated.
- 3. A gift only qualifies for an abatement as far as the forced heir cannot obtain his forced share through the abatement of more recent gifts. Gifts of which the benefit will only be fully enjoyed after the death of the testator, are taken into account as gifts made at the moment of the testator’s death.

Article 4:90 Effectuation of the abatement of a gift
- 1. An abatement of a gift is effectuated by a declaration to the donee (the one who has received the gift). The donee must compensate the forced heir for the value of the abated part of the gift, as far as this is not unreasonable in regard of all circumstances.
- 2. A gift cannot be abated as far as this would lead to a reduction of the forced share of another forced heir.
- 3. The right of a forced heir to abate a gift ends on the expiry of a reasonable period set by the donee for this purpose, and at the latest five years after the testator's death.

Article 4:91 Stepchildren and forced shares
- 1. If the testator has made a testamentary disposition or a gift to a stepchild, then - contrary to Articles 4:80 up to and including 4:89 – these dispositions or gifts shall not be abated, except as far as the value of what this stepchild has received is more than twice of what the forced share of a child would have been if the stepchildren who received a benefit from the testator would have been his own children. The value referred to in the first sentence is increased with the value of what is equated with a gift under Article 4:70 paragraph 3.
- 2. The debt-claim of a forced heir as referred to in Article 4:80 will be reduced insofar it cannot be abated in accordance with Article 4:87 as a result of the application of paragraph 1.
- 3. The testator may stipulate in his last will or when making the gift to a stepchild that the application of paragraph 1 shall be excluded, either in full or in part.

Article 4:92 Exercising the rights (powers) of the forced heir
- 1. After the forced heir has died, his rights (powers) can be exercised by the persons who are entitled to his estate.
- 2. When a forced heir gets bankrupt or when he falls under the Debt Repayment Scheme for Natural Persons, his rights (powers) can be exercised by the official liquidator appointed by the court ('faillissementscurator') respectively by the legal administrator appointed by the court ('bewindvoerder').
- 3. The rights (powers) of a forced heir can only be transferred together with an inherited share in the estate of the deceased testator.

Section 4.4.4 Form of a last will

Article 4:93 Last will of one testator in one deed
A last will made by two or more testators in the same deed, is null and void.

Article 4:94 Notarial last will or a holographic will
Except for what is provided for in Articles 4:97 up to and including 4:107, a last will can only be made either by notarial deed or by a private deed (holographic will) that is given in safe custody to a notary.

Article 4:95 Holographic will (last will made by private deed)
- 1. A person who has not been able to read his last will due to ignorance or another cause cannot make a valid holographic will (last will made by private deed).
- 2. A holographic will (last will made by private deed) must be signed by the testator personally. Where a holographic will (last will made by private deed) contains more than one page and is written by another person than the testator personally or by mechanical means, each page must be numbered and certified with the signature of the testator.
- 3. A holographic will (last will made by private deed) must be handed over by the testator to a notary. The testator must declare, when doing so, that the presented private deed contains his last will and that the requirements of the previous paragraph have been met. When the private deed is presented in a closed envelope or in another closed form, the testator may also declare, when handing it over to the notary, that it may be opened only if specific conditions have been fulfilled on the day of his death.
- 4. The notary draws up a notarial deed of the declarations of the testator and of the safe custody, to be signed by the testator and the notary.
- 5. When the testator declares that he is not able to sign the before mentioned notarial deed of safe custody himself due to a specific event that occurred after he signed the private deed that contains his holographic will, then this declaration replaces his signature on that notarial deed of safe custody, provided that it is included in that notarial deed of safe custody.
- 6. A holographic will (last will made by private deed) shall remain in the keeping of the notary who received the private deed containing that last will.

Article 4:96 Burden of proof
A person who contests the validity of a holographic will (last will made by private deed) that has been given in safe custody to a notary, on the ground that the testator has not signed or written the private deed personally or that the testator has not certified its pages with his personal signature, shall have the burden of proof.

Article 4:97 Codicil of will
The following testamentary dispositions can be made by means of a document, without any additional formal requirements, provided that the testator has written this document entirely by hand and that it is dated and signed by him personally,:
a. the making of a bequest of:
1°. clothing and specified personal jewellery;
2°. specified household effects and specified books;
b. a provision due to which the assets, meant under point (a), shall remain outside a matrimonial community of property between the legatee and his spouse;
c. the designation (assignment) of a person meant in Article 25, second and fourth paragraph of the Copyright Act and Article 5, second paragraph of the Neighbouring Intellectual Property Rights Act.

Article 4:98 An 'emergency last will'
- 1. Soldiers and other persons in the armed forces may, in the event of a war or civil war, make a last will before an officer of the armed forces.
- 2. Soldiers and other persons in the armed forces may also in other situations than in the event of a war or civil war make a last will in the way as mentioned in the previous paragraph, provided that they belong to a part of the armed forces that has been assigned:
a. to participate in a military expedition;
b. to fight against the army of an enemy;
c. to protect the neutrality of the State;
d. to participate in an action either in self-defence on a collective or individual basis, or to maintain or restore the international order and safety, or;
e. to follow an order of the competent authority in case of riots and rebellions.
- 3. For the purpose of the previous paragraph an officer may be replaced during a war imprisonment by a non commissioned officer.
- 4. Officers and non commissioned officers are only allowed to render their cooperation if the testator cannot get in touch with a competent notary or consular officer. Non-observance of this provision does not effect the validity of the last will.

Article 4:99 [repealed on 01-05-2004]

Article 4:100 End of the possibility to make an emergency last will
- 1. The possibility to make a last will as provided for by Article 4:98 paragraph 1 continues to exist until the King (Government) has declared that the war or civil war must be regarded to have ended for the purpose of that provision.
- 2. The possibility to make a last will as provided for by Article 4:98 paragraph 2 continues to exist until an announcement is made in the way as stated in an Order in Council, including the statement that the assignment (designation) of the involved part of the armed forces has ended.

Article 4:101 Sea-going ship and aircraft
Persons who, when making a journey, are staying on a sea-going ship or in an aircraft may make a last will in front of the captain or pilot or in front of the first officer or, when such a person is absent, in front of a person who takes his place.

Article 4:102 Isolated geographical areas
In areas (territories) where it is impossible to get in touch with a notary or competent consular officer, because of a ban or as a result of calamities, crises, operations of war, contagious diseases or other extraordinary circumstances, it is possible to make a last will in front of a Dutch consular officer, even when he would not be competent as such according to the standard rules of law, or in front of the Mayor, the Secretary or an Alderman of a municipality, in front of a junior notary, a solicitor (attorney), an officer of the armed forces or of a communal or regional fire department or in front of a civil servant who has been declared competent thereto by the Ministry of Justice.

Article 4:103 Form of an emergency testament
- 1. The last wills meant in Article 4:98, 4:101 and 4:102 are executed in the presence of two witnesses. They must be put in writing in an appropriate way and they have to be signed by the testator, the witnesses present and the person in front of whom the deed containing the last will is executed.
- 2. The witnesses must be of age and they must understand the language in which the last will has been drawn up. In cases as referred to in Article 4:98 and 4:102 the witnesses do not necessarily have to be of age if it concerns soldiers who are in combat or persons who are trying to relief a calamity or who are trying to control a crisis.
- 3. If the testator or one of the witnesses declares that he is not able to sign a document personally because of ignorance or another specific cause, then this declaration will replace his signature, provided that it is included in the private deed itself.

Article 4:104 Form of an emergency deposit of a last will
- 1. In situations as referred to in Article 4:98, 4:101 and 4:102 the testator is also entitled to make a personally signed last will by private deed (holographic will) that, in the presence of two witnesses, is given in safe custody to the person in front of whom such a deed may be executed according to those Articles. This person immediately draws up a signed written deed in which he declares that he has taken the last will in safe custody; he may also put this declaration in writing on the private deed itself or on its envelop or cover, provided he signs it personally. The previous Article applies accordingly to this written deed.
- 2. Article 4:98 paragraph 4 and Article 4:100 apply accordingly.
- 3. A person who contests the validity of a last will made by private deed that has been given in safe custody as meant in the present Article, on the ground that the testator has not signed this private deed personally, shall have the burden of proof.

Article 4:105 Sometimes no safe custody needed
Where, in a case as meant in previous Article, the last will by private deed is dated and signed by the testator, and the testator dies without having given his last will in safe custody to another person in accordance with the law, his last will shall nevertheless be valid, unless the testator reasonably would afterwards still have been able to make a last will in line with the previous Articles.

Article 4:106 Central Register for Testaments
- 1. A person who has in his keeping a deed containing someone's last will or containing a statement that such a last will is given in safe custody or that it has been recalled, as referred to in Article 4:98, 4:100 up to and including 4:105 and 4:113, must send this deed as soon as possible in a closed envelope to the Central Register for Last Wills (Testaments) in The Hague.
- 2. The previous paragraph does not apply to deeds which are drawn up by or in front of a notary or consular officer, competent to this point according to the standard rules of law, nor for private deeds which they keep in safe custody.

Article 4:107 Duration of the validity of a last will
- 1. The last wills meant in Article 4:98 and 4:100 up to and including 4:104, are voidable when the testator dies more than six months after the end of the situation on the basis of which he had the possibility to make a last will in a way as provided for in those Articles.
- 2. The period is extended each time with one month if the testator was reasonably not in a position to make a last will in the last month of a running period.

Article 4:108 A voidable last will
A last will made in accordance with the formal requirements of Article 4:98, 4:101, 4:102 and 4:104, yet not under the circumstances which are indicated in these Articles, is - if the testator dies within six months afterwards - not null and void, but voidable.

Article 4:109 A null and void last will
- 1. A last will is null and void if the law requires that the personal signature of the testator has to be put on a private or notarial deed containing someone's last will or containing a statement that such a last will is given in safe custody, and the testator's personal signature is missing on such a deed.
- 2. A last will that must be made by and in front of a notary is null and void if the notarial deed is not signed by the involved notary. A last will that is given in safe custody to a notary is null and void if there is no signed notarial deed indicating that the last will has been given in safe custody to him. If, however, in this last situation the notarial deed containing the last will itself is signed by a notary, this last will shall only be voidable.
- 3. The previous paragraph applies accordingly to a last will that has to be made in front a person mentioned in Article 4:98, 4:101 or 4:102 or that has to be given in safe custody to such a person in accordance with those Articles.
- 4. The non-observance of other formal requirements set by law for the validity of a last will makes the last will voidable.

Article 4:110 Extension of applicability of Article 4:54
The provisions of Article 4:54 apply accordingly to the right of nullification of a voidable last will.

Section 4.4.5 Revocation of an earlier made last will

Article 4:111 Form of a revocation
The revocation of a last will is subject to the same formal requirements as those set by law for the making of that last will.

Article 4:112 Non-revocation of an earlier made last will
A newly made last will that does not explicitly revoke an earlier made last will, shall nevertheless have the effect that this earlier made last will ceases to exist as far as the execution of that earlier made last will has become impossible as a result of the newly made last will or as far as that earlier made last will has been replaced by the newly made last will.

Article 4:113 Revocation of a last will by private deed because it is claimed back
A holographic will (last will made by private deed) that has been given in safe custody to a notary or another person may at any time be reclaimed by the testator, provided that he signs a deed, drawn up in front of this notary or other person, in which he acknowledges on behalf of that notary or other person that his holographic will has been handed back to him; if the holographic will (last will made by private deed) is kept in safe custody by another person than a notary, then the deed in which the handing back is acknowledged must be drawn up in front of this other person in accordance with the formal requirements of Article 4:103. By returning the holographic will (last will by private deed) to the testator, it is revoked automatically.

Article 4:114 Revocation because of the physical destruction of the private deed
Where a private deed containing a valid holographic will (last will made by private deed) is not given in safe custody to a notary or another person, that holographic will shall be revoked when the testator destroys the paper on which it is written. Where such a paper has been destroyed, the law presumes that this is done by the testator himself.