Claimability of a legacy that does not consist of a sum of money
By means of: Marjolein Hees
It is not always clear when a legacy granted by will is claimable. For example, the testamentary provision 'I bequeath to deliver a good estate within 1 year after my death', not consisting of a sum of money but for example a real estate, in practice very common. For both the heir who must surrender the legacy and the person who is entitled to surrender the legacy, the legatee, the question quickly arises: when must the legacy have been surrendered? More legally speaking: when is the legacy claimable?
The enforceability of a legacy, which is a right of claim, has all kinds of legal consequences. For example, compliance can be demanded and default interest can be claimed or can be announced. The fruits of the bequeathed property also accrue to the legatee from the moment the legacy is enforceable. 'Fruits' can include, among other things, rent from a bequeathed immovable property in a rented state. It is therefore very important to determine from which moment the legacy is enforceable.
Recently, the Court of North Holland, Alkmaar location, considered the question of when a legacy of several dozen rented garages became due and payable. The testator's will contained the passage quoted above. The heir took the position that the legacy was only due and payable 1 year after death. The heir therefore also claimed the rent for the garages until the moment of delivery of the legacy; during the year from the time of death. The delivery in this case ultimately took place almost 1 year after death. The legatee – represented by my office – took the position that the legacy was already due and payable at the time of death, and therefore that the rent was already due to the legatee from that moment on. The financial interest amounted to several thousand euros.
By judgment of 5 February 2020, the court ruled in favour of the legatee/our client for the following reasons.
The starting point is Article 6:38 of the Dutch Civil Code, i.e. the enforceability as of the date of death unless the testator 'has set a time for compliance'. The question was whether that was the case here. Based on the interpretation of the will and the Parliamentary History, the court concluded that the testator did not intend with the quoted phrase and did not therefore stipulate that the heir has the right to the fruits of the legacy during the period of the year. The term must only be regarded as a incentive period for the heir to proceed with delivery. In doing so, the court applies analogously the considerations of the Supreme Court in its judgments from 1994 (ECLI:NL:HR:1994:ZC1374) and 2009 (ECLI:NL:HR:2009:BI7128).
The conclusion is that the legatee can not only claim delivery of the legacy immediately after death, but also that he is immediately entitled to the rent of the bequeathed property. The fact that the legacy was only delivered approximately 1 year after death does not alter this.
This shows that the correct reading of a will is a legal skill and that it pays to seek good advice.
Do you have any questions? Please contact contact with our inheritance law specialists.
