Family Law

A last will is a document, in which one person states what he wants to happen to his inheritance (hereinafter "estate") after his death.

In this document the person making the will (hereinafter "testator") can make all sorts of dispositions, like bequests of property, the appointment of heirs, the appointment of an executor, the appointment of a guardian over minor children and a so-called exclusion clause.

A bequest is a gift of e.g. money, a house, a car, etcetera.

The appointment of an executor can be important, especially when the heirs of the deceased are living all over, and attention needs to be given to the estate on a regular basis. The executor is charged with wrapping up the final affairs of the testator, the issuance of the bequests, and to make the preparations for a division and partition of the estate.

The exclusion clause states that whatever anyone will obtain from the estate will never fall in any community of goods (or similar settlement-clause) in which the beneficiary might happen to be married at any time. This can be important when the testator has children, and does not want the spouse of a child to share in the part that the child will obtain from his estate.

In the event a testator is not married and has no children it can be very important to make a will, even if it was just to appoint heirs (the persons who will jointly obtain the estate of testator), because the Dutch Caribbean law is especially complicated in this respect. This now brings us to the rules of ab-intestate law, which means those rules of the law regarding the division of an estate in the event no heirs have been appointed by a last will.

We will start with the normal scenario of a husband and wife and for instance three children. The husband and wife are married in community of goods (see our link pre-nuptials) and the husband passes away first. One undivided half of the community of goods will form his estate, which will be obtained by the surviving wife and the three children, each for a one/quarter undivided part and portion. The total undivided community of goods therefor will be owned by the wife and the three children in the following fractions: the wife 5/8 (being half of the community of goods plus one/quarter of the undivided half of the deceased husband) and each of the children 1/8.

The next case is a married couple without children. In this event the surviving spouse is the sole and only heir. If these spouses pass way at the same time, their estates will be inherited by their respective families, each for one half (in the case of community of goods).

If a person passes away unmarried but leaving children, his/her estate will be obtained by the children, jointly and for equal shares.

In all events, when an ab-intestate heir predeceased the testator, the share of that heir that he would have obtained, had he been alive, will be obtained by his/her legal descendants, in accordance with the rules of law. This is called representation.

The next scenario is a testator who dies not married and has no children and did not make a last will. In this event the estate will be obtained by his parents (or surviving parent) for one half of the estate and by his brothers and sisters for the other half. In the event neither parent is alive, the estate will be obtained entirely by the brothers and sisters, jointly and for equal shares. In the event a brother or sister predeceased the testator the rules of representation will apply again. In the event the testator had no brothers and sisters and both parents have already passed away, his estate will be divided equally between the families of his parents, which means that one half will be obtained by the legal descendants of testator's grand-parents on father's side, and the other half by the legal descendants of testator's grand-parents on mother's side. It is quite understandable that in this scenario it is of vital importance to make a last will and to appoint heirs. It will make it infinitely easier to deal with the estate, and the testator can thereby also make sure that no part of his estate is obtained by any person, that he does not wish to get anything. More-over due to migration of persons of the Dutch Caribbean it is nearly impossible to deal with such an estate.