Saturday, 7 March 2026
The Supreme Court of the Netherlands has clarified the legal requirements insurers must meet when invoking the consequences of a policyholder’s failure to disclose relevant information before signing an insurance contract.
In a judgment issued on 27 February 2026, the court confirmed that insurers must notify policyholders within two months of discovering a breach of the pre-contractual duty to disclose, but it also provided guidance on when that discovery is considered to occur in practice.
The ruling arose from a dispute over a work-related disability insurance policy. The court examined when an insurer can be said to have “discovered” that a policyholder failed to disclose relevant medical information, a key issue because the insurer’s right to rely on non-disclosure depends on timely notification.
The case concerned a disability policy taken out in 2014. The policyholder had not disclosed a congenital spinal condition when the policy was arranged.
In August 2020, the insured person filed a claim after becoming unable to work due to neck and back problems. During the investigation that followed, the insurer suspected that relevant medical information had not been disclosed during the underwriting process.
In November 2020 the insurer informed the policyholder that the claim review had identified potential discrepancies and warned that the omission could affect coverage. Further medical information was requested.
In February 2021, a surgeon’s letter received by the insurer’s medical adviser indicated that the policyholder had previously consulted multiple specialists regarding chronic back pain linked to a congenital spinal deformity. The insurer’s claims handler was informed shortly afterward and subsequently notified the policyholder of possible non-disclosure and its consequences.
The insurer later concluded that the policy provided no coverage because of the undisclosed condition.
The Court of Appeal previously ruled that the two-month notification period began when the medical adviser received the surgeon’s letter in February 2021. Because the insurer formally denied coverage in April 2021, the court concluded that the notice had been issued too late.
The Supreme Court overturned that interpretation.
The high court confirmed that the two-month deadline begins once the insurer has sufficient certainty that the policyholder breached the duty to disclose. However, it ruled that the receipt of medical information by the insurer’s medical adviser does not automatically count as the moment of discovery by the insurer itself.
In disability insurance cases, insurers are typically restricted from directly assessing detailed medical records. Instead, they rely on advice from medical advisers who are bound by professional confidentiality. The court therefore held that discovery generally occurs when the insurer’s claims handler evaluates the medical adviser’s assessment with appropriate speed.
Because of this distinction, the Court of Appeal was incorrect to treat the medical adviser’s receipt of the surgeon’s letter as the start of the two-month period.
The Supreme Court also clarified that when insurers notify policyholders of a breach, it is sufficient to inform them of the possible consequences of the non-disclosure. A detailed final decision about coverage is not required at that stage.
The ruling provides further interpretation of the Dutch Civil Code provisions governing disclosure obligations in insurance contracts, particularly Articles 7:928 and 7:929.
For insurers, the judgment highlights the importance of promptly investigating potential inconsistencies in policyholder disclosures and issuing timely notices once a breach becomes reasonably certain. Failure to notify within the two-month window can prevent insurers from relying on non-disclosure as a defence.
At the same time, the decision recognises the practical role of medical advisers in disability insurance claims and clarifies that their receipt of information does not automatically trigger the notification deadline.
Legal observers note that questions may still arise in other types of insurance claims where insurers rely on external experts such as loss adjusters, technical consultants or lawyers. Future cases may determine whether similar reasoning applies in those contexts.
Source: CMS
