Extreme Abuse of Lack of Legal Knowledge and Vulnerable Position

This complaint was filed after a non-Dutch-speaking elderly lady found herself in an abusive situation. Her daughter and her daughter’s future husband (who was also the mother’s family doctor) managed to execute three instruments (the mother’s will, living will and some powers of attorney) in which they dictated what they were going to inherit from the mother and how her assets would be distributed, while giving themselves broad powers. The daughter and her future husband/doctor — not the mother — engaged a notary. Additionally, the daughter — not the mother — would communicate with the notary, receive the draft instruments and meet to prepare execution. The only thing the mother had to do was to sign in the notary’s presence. And that’s what happened. Shortly thereafter, the mother died at her nursing home (¶ 2.9). That same year, her daughter and doctor (¶ 2.10) celebrated their marriage.

The notary made some false statements in the instruments, claiming, for example, that the mother was living with her daughter when in reality she was living at a nursing home. The notary also made the following false statement (¶ 2.8):

“NO INTERPRETER/TRANSLATION

[The mother] stated to me, the notary, that she sufficiently understands the language of this instrument, as I noticed, and that she does not need a translation from a sworn interpreter under section 42(1) of the Office of Notary Act.”

According to the complaint (¶ 4.14), the notary never had any conversation or consultation with the mother in her capacity of testatrix/principal about what she herself wanted to include in her instruments, even though the instruments included her very personal will and testament. Obviously, proper execution requires at least having a face-to-face consultation with the person signing the instruments. However, the only conversation that the notary had about the three instruments was with third parties who, moreover, had a very personal financial interest, namely: her daughter and her daughter’s future husband who was also her mother’s family doctor. During that single conversation her daughter and her daughter’s future husband were the ones who dictated what to include in her mother’s instruments. Therefore, according to the complaint, the notary breached his duty to inform the mother adequately as required under Section 43 of the Office of Notary Act.

Whenever one of the signatories doesn’t properly understand the instrument’s language, Section 42 of the Office of Notary Act requires notaries to perform their duty to inform under Section 43 of said Act with the assistance of an interpreter. In this case multiple circumstances show that the mother didn’t properly understand the Dutch language. This was exacerbated by the complexity of the instruments’ legal and medical contents.

• The mother was born and raised in Germany and later lived France.
• Multiple testimonies showed the mother only spoke German and French, not Dutch.
• The notary stated that he communicated with her in German.
• During execution the notary himself gave an “oral translation” in German of the instruments.

The complaint states that because the notary didn’t obtain a German or French translation of the instruments nor engage an interpreter, even though he was required to do so, the notary violated Section 42 of the Office of Notary Act.

The Board of Ethics holds that notaries may assume to have fully performed their duty to inform once they have ascertained that the appearers — the signatories — have understood the instrument’s content. Further, whenever an appearer is a foreigner — in this case the mother whose mother tongue was German — who doesn’t understand the Dutch language, Section 42(1) of the Office of Notary Act requires assistance of an interpreter. The word “understand” in Section 42(1) of the Office of Notary Act means that the appearer must understand the instrument’s language. Although the notary stated that he was convinced that the mother had understood the instruments, the Board of Ethics found his conviction to be unfounded. In fact, the mother couldn’t read or speak the Dutch language and the notary seemed to find it necessary to explain the contents of the instruments in German to her. The Board holds that because he failed to obtain a German translation of the instruments and to engage an interpreter, the notary violated Section 42(1) of the Office of Notary Act and breached his duty to inform under Section 43 of said Act. The fact that the notary himself gave an explanation in the German language, doesn’t sway the Board. For these reasons, the Board of Ethics finds for the complainant.

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