Insurance contracts sometimes contain clauses that require policyholders/insureds/beneficiaries to prove that a given event has not occurred. Such persons thus have to prove that there is no reason (grounds for exclusion) why they should not be entitled to a payout by the insurer. An analysis of the legislation clearly indicates, however, that if the insurer refuses to pay compensation on the basis of a contractual ground for exclusion, it is up to the insurer to prove that such a ground for exclusion exists. Insurance contracts may not, therefore, contain clauses that place the burden of proof of the existence of a ground for exclusion on the policyholders/insureds/beneficiaries. More information is available in the FSMA’s opinion on this matter (available in French and Dutch only).
Burden of proof in insurance contracts