1. In your legal system, are there acts which fall within the notion of an authentic instrument as defined in the European Union regulations?
[‘authentic instrument’ means a document which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which:
(I) relates to the signature and the content of the authentic instrument; and
(II) has been established by a public authority or other authority empowered for that purpose by the Member State of origin.]
Yes.
If so, what are they? Are these only notarial acts or also acts of other authorities?
Article 156 paragraph 2 of the Code of civil procedure gives the definition of an authentic instrument (see answer question 1.) The notarial act is further defined in the Notarial Code. The Civil Code refers in some articles to a notarial act, meaning that only the authentic act signed by a notary (a notarial act) is accepted (see for example the mortgage act as mentioned in art. 3:260 Civil Code.) Civil registrars, judicial officers and courts can also draw up authentic instruments in the Netherlands, regulated by the Civil Code and the Code of civil procedure.
2. In your legal system, does the authentic instrument have enhanced probative value? What are the rules that provide that?
3. Do all authentic instruments have the same enhanced probative value?
4. Enhanced probative value concerns:
- The date on which the authentic instrument was drawn up
There will be a conclusive evidential effect on the date of drawing up according to Article 157(1) Code of Civil Procedure: the date is a matter falling within the scope of the notary's observations and operations declared in the course of exercising his/her official authority. Rebuttal of this evidential presumption is possible: see Article 151 Code of Civil Procedure.
- The place where the authentic instrument was drawn up
There will be a conclusive evidential effect on the place of drawing up according to Article 157(1) Code of Civil Procedure: reference to the place of drawing up is a matter falling within the scope of the notary's observations and operations declared in the course of exercising his/her official authority. Rebuttal of this evidential presumption is possible: see Article 151 Code of Civil Procedure
- The signature by the parties of the authentic instrument
There will be a conclusive evidential effect on the origin of the signatures from the parties according to Article 157(1) Code of Civil Procedure: reference to the origin of the signatures is a matter falling within the scope of the notary's observations and operations declared in the course of exercising his/her official authority. Rebuttal of this evidential presumption in possible under Article 151 Code of Civil Procedure.
- The parties’ declarations
There will be a conclusive evidential effect on the fact of the making of the declarations by the parties according to Article 157(1) Code of Civil Procedure and also a conclusive evidential effect as to the truth of those statements between the parties (also binding their heirs and assigns) according to Article 157(2) Code of Civil Procedure. The conclusive presumption of the truth of the declarations made by the parties is, however, limited in terms of its legal effects to those legal effects that are truly at the discretion of the parties: there can be no such legal effects concerning matters that are outside the lawful discretion of the parties. Rebuttal of both evidential presumptions is possible under Article 151 Code of Civil Procedure.
- Any observation made by the authority within the limits of its competence
It is envisaged that additional information concerning the above mentioned evidential effects can be provided here. This could include: information as to heirs and assigns bound by the evidence in the authentic instrument; additional information that falls within Article 157(1) Code of Civil Procedure e.g. the name, place of residence and date of birth of the witnesses; and, possibly a reference to Article 151 Code of Civil procedure to indicate that only the most compelling contrary evidence will suffice to rebut the evidence in an authentic instrument.
- The measures the authority declares to have taken
There will, according to Article 157(1) Code of Civil Procedure, be a conclusive evidential effect concerning the facts that the authority (the notary) declares to have been verified by him/her in his/her presence: declarations concerning such verified facts fall within the scope of the notary's observations and operations declared in the course of exercising his/her official authority. Rebuttal of this evidential presumption is possible under Article 151 Code of Civil Procedure.
- Appearance, identification and consent of the parties
There will, according to Article 157(1) Code of Civil Procedure, be a conclusive evidential effect concerning the appearance, identification of the parties and the fact that they gave their consent to the legal act laid down in the authentic instrument: declarations concerning such verified facts fall within the scope of the notary's observations and operations declared in the course of exercising his/her official authority. Rebuttal of this evidential presumption is possible under Article 151 Code of Civil Procedure.
5. Enhanced probative value can be contested:
There are no specific procedures to challenge the authenticity of an authentic instrument. The content of the party statements included in the authentic instrument may be contested by providing counter-evidence. Should someone dispute the authenticity of an act, he/she must provide evidence that either the act is forged or that the person creating the act was not entitled to do so. There is no difference in this regard between challenging the authenticity or the material validity. If the challenge is successful, the authentic instrument can no longer be enforced. The actual enforcement may be challenged by way of an 'enforcement dispute'.
Within what timeframe: general rules apply, meaning within 20 years, see Art. 3:306 Civil Code.
1. In your legal system, which authorities or delegates of public authority can issue authentic instruments in accordance with Article 3 (1) (i) of Regulation 650/2012?
2. Can you indicate which are the most common authentic instruments in the case of a succession to the estates of deceased persons and which authorities issue them?
3. Probative value of certain specific acts, for example the “acte de notoriété” in France and Italy
Art. 4:188 Civil Code states:
- 1. A declaration of inheritance is an authenticated certificate in which a notary mentions one or more of the following facts:
- that one or more persons mentioned in the declaration, whether or not for specific shares, are heirs or the only heirs of the deceased, with indication if they already have accepted their inheritance;
- that the spouse of the deceased is or is not entitled by virtue of Section 4.3.2 to a usufruct of one or more assets belonging to the deceased's estate, with indication if s/he has the power to dispose of (convey) the assets encumbered with his/her usufruct or if s/he has the right to consume (use up) these assets, and with indication if and until which moment the spouse may appeal to Article 4:29 paragraph 1 and 3;
- that the estate of the deceased is apportioned (divided) in accordance with Article 4:13, with indication if and until which moment the spouse has the right as meant in Article 4:18 paragraph 1;
- whether or not the estate of the deceased is subject to an administration by an executor, administrator or a liquidator appointed under Section 4.6.3, with indication of their powers; or
- that one or more persons mentioned in the declaration have the status of executor, administrator or liquidator. This special form of authentic instruments consists only of declarations of the notary and not of the heirs/legatees.
The declaration of inheritance is an example of the proces-verbaal akte, which only contains declarations of the notary.
1. What types of family law instruments exist?