Book 1 Law of Persons and Family Law
Title 18 Absence, missing persons and the determination of death
Section 1.18.1 A fiduciary administration
in the interest of an absent person
Article 1:409 Appointment of a legal administrator
in the absence of the proprietor
- 1. If a person, who has left his home, has
not made sufficient arrangements for the administration of his property
during his absence and there is a necessity to fill up an existing gap
in that administration or to represent the absent person therein, then
the Subdistrict Court may appoint, upon the request of any interested
person or of the Public Prosecution Service, a legal administrator to
administer all or a part of the property of the absent person and to take
care of his other interests.
- 2. For the purposes of this Section a person whose existence is uncertain
or who cannot be reached is equated with a person who has left his home,
even where it has not been established that he actually has left his home.
Article 1:410 Applicability of the statutory provisions
for protective administration and guardianship of minors
- 1. As far as
the Subdistrict Court has not provided otherwise, Articles 1:338, 1:339,1:340,
1:342-1:357, 1:358 paragraph 1 and 1:359 up to and including 1:363 shall
apply accordingly to a fiduciary administration in the interest of an
absent person as meant in the previous Article, on the understanding that
the legal administrator each year has to submit a written account for
his administration at the Registry of the District Court.
- 2. The legal administrator is entitled to
a remuneration in conformity with the rules set for this purpose by the
Minister of Security and Justice.
- 3. The Subdistrict Court’s authorisation
of a submitted written account does not affect the right of the proprietor
of the assets under administration to request the legal administrator
at the end of his administration to render account again over the same
period, insofar this is not unreasonable.
- 4. The legal administrator may also defend
other interests of the absent person than those related to his property,
except insofar this has been excluded by the Subdistrict Court.
- 5. The Subdistrict Court may at all times
discharge the legal administrator and replace him by another.
Article 1:411 End of a fiduciary administration in
the interest of an absent person
A fiduciary administration of property in the interest of an absent person
a. by a joint decision of the proprietor and
b. when the proprietor has notified the legal
administrator that he terminates the administration of his property, with
due observance of a term of notice of at least one month;
c. when the death of the proprietor has been
Section 1.18.2 Persons whose existence
Article 1:412 Authorisation to exercise the rights
of an heir or legate
- 1. Where a person, whose existence is uncertain, becomes entitled to
a share in an inheritance or a bequest to which other persons would have
been entitled if this person should not be alive, the District Court shall
authorise these other persons, upon their request, to exercise the rights
of an heir or legatee instead of the person whose existence is uncertain.
- 2. The District Court may, where necessary, call persons to court by
means of a public announcement and order protective measures on behalf
of other interested persons.
- 3. If, after the court has granted its authorisation as meant in paragraph
1, it becomes clear that the missing person was still alive at the moment
on which other persons, instead of him, were called to the estate (inheritance),
then the missing person or any other persons with a better right or title
may reclaim the assets received from that estate and the benefits (fruits)
of these assets from the persons having possession of these assets and
benefits; the involved assets and benefits (fruits) may be reclaimed on
the basis of the court order in which the missing person has been declared
presumably death, yet with due observance of the limitations specified
in that court order.
- 4. The previous paragraphs of the present
Article apply as well to a life insurance benefit for which the person
whose existence is uncertain was appointed as first beneficiary.
Article 1:413 Court order for a declaration that a
missing person is presumably dead
- 1. Where the existence of a person is uncertain and the period indicated
in the next paragraph has passed, any interested person may request the
District Court to be permitted to call the missing person officially to
court in order to prove that he is still alive and, if this has not been
proven, that the Court shall declare that there is a legal presumption
that the missing person is dead.
- 2. a. The period meant in the previous paragraph is five years, to be
calculated from the departure or the last sign of life of the missing
b. The period is shortened to one year if the person is missing during
that period and there are additional circumstances that make it likely
that he has died.
- 3. The request meant in paragraph 1 can be filed as well by the Public
Article 1:414 Process of calling the missing person
- 1. The District Court shall specify the days and hours on which the
missing person should appear in court. The period to be observed when
calling a missing person to court is one month or so much longer as the
court regards necessary. The process of calling a missing person to court
is governed by the statutory provisions of Section 3 of Title 3 of Book
1 of the Code of Civil Procedure.
- 2. If the missing person does not appear in court and no other person
stands up to plead convincingly that the missing person is still alive,
then the District Court shall declare that there is a legal presumption
of death, notwithstanding its right to give once again a court order as
meant in paragraph 1 and to demand a hearing of witnesses and the production
of supporting evidence in proof of the fulfilment of the requirements
of Article 1:413.
- 3. The court order enclosing the declaration that there is a legal presumption
of death, mentions the day on which the missing person is presumed to
have died; the day following the one on which a last sign of life has
been noticed, shall be regarded as such day, unless there are enough reasons
to suspect that the missing person was still alive for a while after that
- 4. The court may determine also that the
costs made by the applicant under Article 1:413 paragraph 1 are paid from
the assets of the missing person.
Article 1:415 [repealed on 10.07.1978]
Article 1:416 No appeal open against a court order
as meant in Article 1:413
No appeal is allowed against a court order in which a person is permitted
to call a missing person officially to court as meant in Article 1:413
Article 1:417 Death certificate
- 1. Once the court order declaring that there is a legal presumption
of death has become final and binding, the clerk of the court where the
case was last pending will send a true copy of that court order to the
Registrar of Civil Status of the abandoned domicile or, in the absence
of an abandoned domicile in the Netherlands, of the municipality of The
Hague. This Registrar then draws up a certificate of registration of the
court order, that has to be consistent with the decision of the court
and that has to mention specifically that it is based on such a court
- 2. This death certificate constitutes proof against everyone of the
fact that the missing person has died on the day mentioned in that certificate.
Article 1:418 Obligations for the heirs and legatees
of the missing person
- 1. Before the heirs and legatees of a person who has been declared presumably
dead take possession of his estate, the Subdistrict Court may order that
they provide security for what they might have to give back to the missing
person if he would return or for what they might have to hand over to
heirs or legatees with a better right or title.
- 2. The heirs must make a proper inventory list after they have taken
possession of the estate of a person who has been declared presumably
- 3. Registered property may not be alienated or encumbered, except for
important reasons and with authorisation of the Subdistrict Court. If
it is not possible to divide and apportion the registered assets of the
estate other than through a sale and the distribution of the proceeds,
then these assets will be placed under administration of a third person
who will distribute the benefits from these assets in accordance with
what to this point has been agreed upon in relation to the division and
apportionment of that property.
- 4. The division of the estate of a person
who has been declared presumably dead shall be made by authentic deed,
which must specify as well what is distributed to legatees and other beneficiaries.
- 5. The property of the estate should not
be wasted and no excessive donations may be made from it.
- 6. If the Subdistrict Court requests so,
the heirs and legatees must provide the court with all necessary information.
- 7. The obligations in this Article shall
expire on the date specified by the Subdistrict Court and in any case
five years after the date on which the death certificate has been drawn
up in accordance with Article 1:417. The District Court that has given
the court order in which the missing person has been declared presumably
dead, may specify in that court order as well that, in view of the circumstances
of the situation, one or more of the obligations mentioned in the present
Article do not have to be observed.
Article 1:419 Documents to be deposited at the Registry
of the District Court
The original or a true copy of the deed providing the requested security,
of the inventory list and of the deed of division of property must be
deposited at the Registry of the District Court.
Article 1:420 Appointment of a legal administrator
- 1. When the Subdistrict
Court is of the opinion that an heir or legatee has not fulfilled the
obligations imposed on him pursuant to the two previous Articles, it may
appoint a legal administrator for the assets from the estate of the missing
person to which this heir or legatee has become entitled; the administration
shall end when the Subdistrict Court has decided that this heir or legatee
has fulfilled his statutory obligations.
- 2. Insofar the Subdistrict Court has not
provided otherwise, Articles 1:338, 1:339, 1:340, 1:342-1:357, 1:358 paragraph
1 and 1:359 up to and including 1:363 apply accordingly to an administration
referred to in the previous paragraph, on the understanding that the legal
administrator each year has to submit a written account for his administration
at the Registry of the District Court.
- 3. The legal administrator is entitled to
a remuneration in conformity with the rules set for this purpose by the
Minister of Security and Justice.
- 4. The Subdistrict Court may discharge the
legal administrator at any time and replace him by someone else.
Article 1:421 Obligations of the spouse or registered
The provisions of the previous three Articles with regard to heirs receiving
assets from the estate of a person who is presumably dead, apply accordingly
to this person’s spouse or registered partner who has received assets
as a result of the dissolution of a community of property or an equalisation
on account of a marital equalisation obligation. The spouse or registered
partner, however, is not obliged to provide security for what has been
received on that basis.
Article 1:422 Return of the missing person or an incorrect
date of his death in his death certificate
- 1. If the missing
person returns or it appears that the date of his death on his death certificate
is incorrect, then each person who, pursuant to the previous Articles,
has possession of any asset of the missing person or who holds such an
asset on account of a fiduciary administration must render account for
and hand over the assets to the returned missing person or to those who
then appear to be entitled to these assets.
- 2. Rights of third persons obtained in good
faith will be respected. If, however, assets have been acquired gratuitously,
the court may order the persons who have enjoyed an advantage as a result
of this to pay a reasonable compensation to the persons who unjustly have
lost their entitlements to these assets.
- 3. Where the life of the missing person was
insured for the benefit of third persons, these third persons remain entitled
to what, prior to the return of the missing person, has been paid out
already and to what already has become due to them on account of that
insurance; in that event no other entitlements can be derived from the
Article 1:423 Incorrect death certificate
- 1. If it is proven within five years after the day on which the death
certificate has been drawn up in accordance with Article 1:417 that this
certificate is incorrect, then the persons who have enjoyed in good faith
the benefits (fruits) of the missing person’s estate shall only
have to return one-half thereof; if the incorrectness of the death certificate
is proven later, then they do not have to return anything of the enjoyed
- 2. If it is proven more than ten years after the day on which the death
certificate has been drawn up that this certificate is incorrect, then
the persons who in good faith have taken possession of the assets form
the missing person’s estate shall merely have to return the assets
which are still in their possession and only in the state at that time,
in addition to the price of the transferred property or assets that were
received in return for such assets; the benefits enjoyed from these or
other assets do not have to be returned or compensated and no compensation
is due for assets that are no longer available; there is neither an obligation
to render account.
- 3. Any obligation to return property shall cease to exist on expiry
of twenty years since the day on which the death certificate was drawn
Article 1:424 [repealed]
Article 1:425 Civil status and authority over the
children of the missing person who has returned
- 1. If the wife of a missing person has entered into a new marriage,
while afterwards it becomes clear that the missing person was still alive
on the day mentioned as his day of death in his death certificate that
has been drawn up in accordance with Article 1:417, then the marriage
with the missing person is nevertheless regarded to have been dissolved
at the date of his death as mentioned in that death certificate insofar
it concerns the determination of the civil status of her children born
prior to the new marriage.
- 2. The person who has been declared presumably dead and who has not
regained authority over his minor children upon his return, may request
the District Court to grant him authority again. If the missing person
files such a request jointly with the other parent in the interest of
the child or when no one exercises authority over the child or when the
child is placed under guardianship of a legal guardian, the request may
be denied only if there is a well-substantiated ground to fear that the
interests of the child would be neglected if the request would be awarded.
In other situations the request shall be awarded only if the court considers
this to be in the best interests of the child.
Section 1.18.3 Determination of
death in certain cases
Article 1:426 Declaration of death
- 1. If the corpse of a missing person could not be found but, taking
into account all circumstances, his death may be regarded as certain,
then the District Court may, upon the request of the public prosecutor
or any interested party, declare that the missing person has died:
a. if the disappearance occurred in the Netherlands;
b. if the disappearance occurred during a voyage
with a ship or aircraft that has its home base in the Netherlands;
c. if the missing person had the Dutch nationality;
d. if the missing person had his domicile or
habitual residence in the Netherlands.
- 2. When a person has died outside the Netherlands and no death certificate
has been drawn up or such a death certificate cannot be submitted, the
District Court may, upon the request of the public prosecutor or any interested
party, declare that this person has died:
a. if the death occurred during a voyage with
a ship or aircraft that has its home base in the Netherlands;
b. if the deceased person had the Dutch nationality;
c. if the deceased person had his domicile
or habitual residence in the Netherlands.
- 3. The legal claim or request meant in paragraph
2 and 3, or the accompanying documents, must contain the data mentioned
in Article 1:427 to the extent that this is possible.
Article 1:427 Content of the court order
- 1. The court order enclosing the declaration that the person meant in
Article 1:426 is dead, shall mention the date and, if possible, the hour
of death. When the day of death is unknown, the District Court will establish
that date and mention it in its court order. When giving its decision
the District Court shall take into account all evidence and every indication
with regard to the conditions under which the death has set in and the
time of death.
- 2. Furthermore, the court order shall mention the deceased’s surname,
forenames, gender and, if possible, his place of death, his domicile,
his place and date of birth and the surname and forenames of the person
or the persons with whom the deceased was married or with whom he had
entered into a registered partnership.
Article 1:428 [repealed on 01.04.1995]
Article 1:429 Registration in the register of death
As soon as the court order has become final and binding, the clerk of
the court where the case was last pending, shall send a true copy of that
court order to the Registrar of Civil Status of the municipality of The
Hague. This Registrar then draws up a certificate of registration of the
court order, which is registered in the Register of Death.
Article 1:430 Legal effects of a registration in the
Register of Death
- 1. The certificates drawn up in accordance
with Article 1:429 shall be regarded as a death certificate in the sense
of Article 1:19f paragraph 1.
- 2. Articles 1:422, 1:423 and 1:425 apply
accordingly if a person, who has been declared dead under application
of Article 1:426, later on returns, or if it is proven that the day of
death mentioned in the certificate of registration referred to in the
Article 1:429 is incorrect.