When heirs are not happy with the will

Whether your will is 50 or 5 years old, it remains legally valid. Even if you have divorced; after your death, your ex, named as an heir, may receive all your worldly goods.

‘What do you mean, always valid?’ Mark looked at his brother Ties in surprise. They were talking about their father’s will. Ties: ‘Exactly as I say. Dad drew up that will 10 years ago. Back then we were still one big happy family. He appointed Mum as the heir to the company, in case he died. But of course he hadn’t thought that they would get divorced. Yet her appointment as his successor is still legally valid.’

Just as in private life, it is also important for entrepreneurs to have a will drawn up in a business sense. Business takeover and succession must be put on record. The continuity of the company can depend heavily on it. It can also help to separate business and personal assets. Especially if an entrepreneur has several companies or has made investments. The risk of a legal battle among heirs decreases if a will is up to date and carefully drawn up.

Mark and Ties’s father had an office furniture business. Their mother had the taste and style, their father Theo the commercial skills. That was an excellent match until their marriage hit the rocks. When they divorced, Theo got in touch with a stylist who took charge of purchasing. ‘That was actually the moment the atmosphere at the company improved, wasn’t it?’ said Mark. Together with his brother he had worked there many a holiday. Ties nodded in agreement: ‘Yes, she helped the company a lot back then, even before she and Dad got together. Because Mum was of course constantly arguing with Dad and didn’t want anything more to do with it. But yes, now we do have a problem.’

The problem was that Dad, Theo, had died unexpectedly. The brothers had talked to the notary because of their mother’s mention of a will. ‘I was appointed as heir at the time, and so I am the one who takes over the company,’ she said. ‘It also states how any debts are to be settled and what happens to the employees if the owner dies.’
That immediately created a new problem: the heir. ‘So I inherit the company,’ Mum had said. ‘Because that’s still in the will.’
But then she had reckoned without the stylist. She said firmly: ‘I am your father’s girlfriend, and co-buyer, so it seems to me that I should be the one to take over the company. Theo always led me to believe that. As far as I’m concerned, that could also be together with you as the children.’
And so it emerged that a will always remains valid. Even if it was drawn up 50 years ago and even if the people involved have been divorced for years. The question then is whether the will still reflects the wishes of the deceased.

And yes. Theo really would no longer have wanted her to have that company. And besides, she hadn’t lived through the last very lean years and had no idea what was going on. On the other hand, it would also be very illogical to award the business to Dad’s girlfriend, when she wasn’t mentioned anywhere in any document.
What Theo should have done was revoke his will. Every will begins with a provision stating that previous wills are revoked – regardless of whether there are any previous wills at all. Or – and this is common nowadays – include a passage stating that in the event of divorce the former spouse is not an heir.
‘If only he had written a note saying the will was no longer valid,’ sighed Ties.
‘No, that’s not enough,’ Mark knew. ‘Amending or cancelling it must always go through the notary.’
They asked the notary for advice. The notary pointed out the possibility of mediation – a neutral third party who could help with this complex case. The children, their mother and their father’s girlfriend could then make their positions clear, and the mediator could help in finding a compromise.
The notary indicated that there was also a will-related procedure that could be followed if the parties could not work it out; that is, seeking legal advice and possibly going to court.

In this case they decided to sell the company. The largest part of the proceeds went to the children and a smaller part to the ex-wife. An arrangement was made for the girlfriend. But the boys had been warned. ‘Good to know that you should always update your will when circumstances change,’ said Mark. ‘Whether it’s business or personal.’