A living will often gives extensive powers of attorney. These can be abused. This is evident from a case in which the District Court of The Hague recently ruling has done.
The case concerns two children who are heirs of their mother, who died in 2021, each for half. Mother suffered from dementia and had been admitted to a care home in connection with it since 2018. One child had been looking after the (financial) interests of her mother since 2016, who had given her the powers of attorney to do so in 2016 in the form of a living will.
Several transfers appear to have been made to one child's bank account in the years 2016 onwards. Also, cash withdrawals were made in those years. The other child believes that these transfers and cash withdrawals were (partly) unlawful and demands before the Court that these amounts be repaid. In substantiating its ruling, the Court attaches importance to what was written down in the living will.
2016 and 2017
In 2016 and 2017, the one child received a total of €15,900 and ATM withdrawals totalling €3,000 were made. The court considered that it had not been established that these withdrawals from mother's bank account were made against her will. Mother had legal capacity during these years, as she had not been placed under adult guardianship or receivership. The notary was obliged to investigate mother's legal capacity prior to passing the living will and saw no reason not to pass this deed. The fact that a diagnosis of dementia followed in 2018 does not mean that mother was unable to determine her will in 2016 and 2017. Similarly, her advanced age (90) does not yet mean she is incapacitated.
2018
In 2018, one child received €20,000 and the other €17,000. The Court reads in the living will mother's wish to treat both children equally. Therefore, the difference of €3,000 must be paid to the estate.
2020
In 2020, the child representing mother's financial interests transferred €102,000 to herself to the other child €2,000. This is substantiated by the claim that this was done at mother's request, as she wanted to correct a past difference between the two children in this way. The court considered that neither such a difference nor the wish to straighten it out in this way was evident from the living will. The difference of €100,000 must therefore be repaid to the estate.
2021
In 2021, the child who looks after mother's financial interests gifts himself €100,000 in the form of a waiver on the purchase price for mother's house. Of this too, the court ruled that it violated the principle in the living will that the children be treated equally. This €100,000 must also be repaid to the estate.
This ruling shows that the court attaches great importance to what is written down in the living will.