Sometimes you only find out as an heir that large sums of money have disappeared from your parents’ bank account. In this blog I discuss the possibility of the heirs to recover that money with the tort as the legal basis.

In principle no account and justification

Now that the elderly continue to live on their own for longer and at a higher age, we see an increase in the use of informal care in family circles. That has its good sides. There is also a risk that an informal carer will transfer substantial amounts of money to himself or herself during the period that he or she is caring for the elderly person.

In legal practice we regularly see that the informal carer is given the bank card with the corresponding PIN code of one of the parents and that these parents start to make all kinds of expenses that do not fit in with their spending pattern. Someone in their late nineties is not likely to buy a DJ set and a drum kit.

When such a case goes to court, it is usually argued that these expenses were made with the consent of the parent concerned. Often the caregiver gets away with it. In principle, this person does not have to account for the expenses incurred by the father or mother during life, certainly not when it comes to amounts withdrawn in cash.

If, for example, a monthly amount is transferred with the description ‘care compliment’, case law shows that approximately € 100 per month is normal in that context. If structurally much more money is involved and another heir calls on his legitimate portion, the beneficiary will have to give up these donations.

Reclaiming based on tort

The Court of Appeal of The Hague recently considered a case in which heirs had made such a fuss that, according to the court, there had been an unlawful act. Tons of money had been withdrawn from Mother’s account in this case.

In this case, a disinherited child had initiated legal proceedings against his two brothers. The mother had given these two brothers a general power of attorney to manage her assets. The disinherited child claimed, however, that this power of attorney had been abused by his brothers and that he had been disadvantaged by withdrawals from the mother’s assets.

The Court appointed a junior civil-law notary as an expert. This candidate civil-law notary has investigated the course of the mother’s assets. In the report, the candidate civil-law notary mentioned € 400,000 in unexplained withdrawals.

Mother, however, lived frugally. The court also established that the mother could no longer independently manage her accounts and her assets and that she was unable to use debit cards and/or internet banking herself.

According to the Court, the findings of the expert justified that the two brothers must nevertheless account for the period that they had had the power of attorney. The Court subsequently ruled that the two brothers had not properly accounted for and that they had to compensate the damage suffered by the disinherited child.

On appeal, the Court of Appeal ruled the same: the two brothers were ordered to pay damages. This compensation consisted of the claim from the father’s estate and the claim of the legitimate portion if the estate was increased by the unexplained withdrawals. The Court gave the following additional argument: “It has been highly unlikely, given her age, condition and financial inexperience, that Mother has been involved in the very active management of her assets.” The Court also considered it unlikely that the large sums of money withdrawn had been spent by mother herself. The two plenipotentiary brothers had behaved contrary to what is socially accepted now that there were many inexplicable withdrawals that had not benefited mother. This wrongful act could be attributed to them, because the disinherited child suffered damage: his legitimate portion had been violated.

Why is the above statement important?

This ruling shows that the involvement of an expert can be decisive in proving the existence of unlawful abstractions and the scope thereof. It also appears from this jurisprudence that in special cases an account and justification must be made by a proxy to a brother or sister who has been disinherited. Compensation can usually be claimed on the basis of a wrongful act.

Would you like to know more about unexplained withdrawals, account and accountability or the use of a claim from a wrongful act within the law of inheritance?

Please contact 020 – 696 3000 and ask for Diederik Ruys.