Times change, also within the field of notarial law. ‘A will dating from around 1980 is barely comparable with one made today’, says Lucienne van der Geld, director of Netwerk Notarissen and a lecturer in Notarial Law at Radboud University. ‘If we look back more than forty years, couples generally stayed together, there were fewer blended families and greater value was attached to family ties. Any major changes were immediately passed on to your civil-law notary and incorporated into your will. Nowadays, this happens less often, even though people’s personal situations are becoming more and more complex. It is therefore increasingly common for surviving relatives to legally contest a will, as, in their view, the wishes of the deceased as presented in the will are out of date. That’s why, when drawing up a will, it is becoming more and more important to document the wishes of the person concerned as clearly and precisely as possible.’
Avoiding debate
According to Van der Geld, when documenting and assessing a person’s last will, civil-law notaries are frequently faced with dilemmas. That is because complex factors can come into the equation. ‘First of all, following a person’s death, there is an increasing focus on the question of whether the deceased had decisional competence at the time the will was drawn up. In other words, was this person capable of making a decision and understanding its consequences? This question is becoming more and more relevant, as people are living to an older age, which also increases the likelihood of illnesses or mental impairments. Another question that frequently arises is whether the will actually reflects the wishes of the person concerned, or whether he or she was influenced significantly by someone else, such as a new partner. If the situation has changed in the meantime, there is also often discussion about what the deceased would have wanted.’
According to Van der Geld, debate can also arise following a person’s death because the content of a will is not sufficiently clear. ‘You see this in particular with wills that were drawn up a long time ago. They may contain sentences that raise questions about what exactly the deceased meant. Nowadays, civil-law notaries try to take steps in advance, when drawing up wills, to ensure such debates are avoided. They do this by documenting the wishes of the person in question as precisely as possible. After your death it is important that your will really speaks for you, as at that point you can no longer provide any further explanations.’
That is also the reason why Van der Geld is carrying out research: to gain greater insights into ‘last wills’. Her research aims to help civil-law notaries draw up better wills in advance, as well as to help courts assess them more easily following a person's death. Van der Geld: ‘It is important to gain a greater insight into decision-making processes. How does someone come to the decision to leave an inheritance to one person and not to another? How is the brain working here? And is a person deciding this for themselves or are they being influenced by someone else? These insights are important for civil-law notaries. For example, they allow them to offer better support to people affected by a brain haemorrhage or another illness or impairment, to ensure they make their own choices.’
The civil-law notary decides
Van der Geld emphasises that, legally, the decision as to whether a person has or does not have decisional competence to make a will lies in the hands of a civil-law notary. It is not, therefore, determined by a doctor. But how exactly do you establish this as a civil-law notary? ‘Various discussion techniques can be used’, Van der Geld explains. ‘It is important to hold a number of discussions with the person in question and to bring up certain matters repeatedly. Does the person appear to give different answers each time and is he or she therefore not being consistent? In such cases you can consult a doctor or psychologist for advice. But it is you, the civil-law notary, who ultimately makes the decision.’
In your capacity as a civil-law notary, how do you assess whether a person is being influenced by someone else? Van der Geld: ‘On the basis of my research, a first part of a set of questions was recently published in the Dutch Journal of Inheritance Law. Civil-law notaries can use that list during their discussions. These questions can help them ascertain whether someone is being influenced.’ Van der Geld acknowledges that her research lies at the interface between notarial law and psychology. She therefore regularly consults brain experts to gain greater insights into decision-making processes. At one point she was considering studying psychology, but in the end opted for notarial law. ‘The advantage of notarial law is that you are able to help another person. In psychology that is not always the case. Law, on the other hand, gives you something to hold on to, a kind of anchor. That appeals to me a lot.’
Would you like to find out more about wills and Lucienne van der Geld’s research? Then listen to or watch the new episode of the Radboud Science Snacks podcast. Please note that this podcast is in Dutch.
Photo: Gabrielle Henderson via Unsplash