If the intentions set out in your will have not been put in writing, the court cannot take them into account in proceedings concerning a mistake.
Stepchildren
The situation in case The case brought before the Gelderland District Court is a fairly common one. A man and a woman were married and had three daughters. The man passed away and had arranged for what is known as a ‘parental distribution of the estate’ in his will. This means that his wife inherits all the assets and debts, whilst the daughters must make do with non-claimable claims until their mother’s death.
So far, so good. The woman meets another man, with whom she enters into a civil partnership. This man has two children from a previous relationship. The woman and her second husband draw up new wills in which the statutory division of the estate is arranged and both the three daughters and the man’s two children are named as heirs.
Trust
The lady passes away and her second husband, together with his two children, decides that the claims of the three daughters against their father’s estate amount to €17,500. This sum is repaid (with a small amount of interest).
The plot thickens when the solicitor makes a mistake and the three daughters discover a letter containing a draft will in which their stepfather no longer names them as his heirs. The three daughters then initiate legal proceedings, arguing that their mother was mistaken when drawing up her will. Had she known that her second husband would exclude her three daughters from his will, she would not have drawn up her will in that way.
The Court dismisses the claim brought by the three daughters. Their stepfather denies that he has amended his will or that he intends to do so. However, setting that aside, the Court considers that a will can only be set aside on the grounds of mistake if it was drawn up on the basis of an incorrect assumption AND that assumption is also included in the will (Article 43(2) of Book 4 of the Civil Code).