Accessing the deceased's medical records as an heir. A way to challenge the will's inability to testate?
After a death, next of kin often wonder whether they have the opportunity to inspect the deceased's medical records. Such access could be useful in function of proceedings before the family court, where one could, for example, argue the invalidity of a will on the basis of unsoundness of mind. Donations could also be annulled if it can be argued from the medical records that one was no longer able to exercise one's will at the time of the donation.
When can you invoke the right to inspect?
Under article 9, paragraph 4 of the Law of August 22, 2002 on Patients' Rights (hereinafter the Patients Act), some heirs are given the right to indirectly inspect the deceased's medical records. However, the right of inspection is subject to some terms linked, namely:
- One is a spouse, legal cohabitant, partner or blood relative up to the second degree of the deceased;
- The request should be sufficiently justified and specified;
- The deceased did not expressly oppose the right of inspection while alive.
Consequently, if the above conditions are met, the heir may make a reasoned request to the deceased's attending physician. The doctor will then decide whether or not the heir meets the above conditions. The right of inspection concerns an indirect inspection, which means that, in most cases, the heir himself will also have to engage a doctor who will exercise the right of inspection on behalf of the heir. Therefore, you cannot directly consult the deceased's medical file at the doctor's office.
Evidence of unhealthiness of mind.
In practice, this right is occasionally used in the context of disputes regarding the deceased's estate. For example, when a person suffering from dementia draws up his or her own will or makes certain donations during his or her lifetime, the heir can prove, on the basis of a number of elements in the medical file, that the deceased was no longer of sound mind at the time the will was drawn up or the donation was made. However, it remains the sovereign power of the court to make the final determination of whether or not unhealthiness of mind has been proven. In many cases, it will be a combination of evidence that will prove unsoundness of mind.
If you have any further questions regarding the right to access a deceased person's medical records, or if you would like our office to guide you through such proceedings, please do not hesitate to contact us or leave a message on our website. Our lawyers will expertly guide you through these proceedings and will be happy to represent your interests in an estate case.
