Requirements for an Emergency Will

Higher Regional Court of Munich, Order from 30.10.2025 – Ref. 33 Wx 174/25e

When a person is in immediate danger of death and a “normal” will can no longer be drawn up in time, the law exceptionally provides for the possibility of an emergency will. However, the order of the Higher Regional Court (OLG) Munich from 30.10.2025 (Ref. 33 Wx 174/25e) shows: An emergency will is only valid under strict conditions. Even minor formal errors can result in the expressed last will having no legal effect.

Important: The following article is for general information and does not replace individual advice in specific cases.

What is an Emergency Will?

Emergency wills are special forms of wills that are only permissible in exceptional situations. The following are particularly considered:

• Three-Witness Will (§ 2250 BGB) – oral declaration by the testator before three witnesses present at the same time.
• Mayor’s Will (§ 2249 BGB) – execution before the mayor (or their deputy) in the presence of witnesses, if a notary is not reachable.
• See Will (§ 2251 BGB) – special form for sea voyages (practically rare).

In the case of the OLG Munich, it was about a Three-Witness Will. This is only permissible if the testator is in a situation where a notary or a mayor can no longer be reached in time and imminent danger of death or a comparable emergency exists.

The statutory core requirements for the Three-Witness Will

To make an emergency will effective under § 2250 BGB, the statutory conditions must be strictly observed. These include especially:

1) Emergency: Immediate danger of death and no timely alternative

A Three-Witness Will is only permissible if:

• immediate danger of death exists or a situation that necessitates immediate execution, and
• a notary or mayor is not reachable in time.

This means in practice: It must be demonstrable that realistic alternatives (e.g., additional notaries, emergency service options, mayor) were not available. A single unsuccessful call may – depending on the circumstances – not suffice to demonstrate the “inaccessibility.”

2) Three witnesses must be present simultaneously

The declaration must be oral in front of three witnesses who are simultaneously present. Subsequent addition or “retellings” are not sufficient.

3) Witnesses must not be beneficiaries (and should be independent)

Witnesses must not be named as beneficiaries in the will. Additionally, it is advisable in practice to choose independent witnesses as much as possible, to avoid later doubts about credibility and testamentary freedom.

4) Record (protocol) of the declaration

The witnesses must document the last will in a record. This documentation is crucial, as it must later demonstrate:

• what intention was declared,
• that the witnesses were present simultaneously,
• that an emergency situation existed,
• the place and time of the establishment.

5) Signature of the testator: fundamentally mandatory

A central point (and core of the higher regional court’s decision): The record must fundamentally be signed by the testator. Only if the testator demonstrably can no longer sign, an exception for omitting the signature may be considered.

If the signature is missing without sufficient proof of an inability to write, the emergency will is usually invalid.

What did the Higher Regional Court of Munich decide?

In the decided case, the testator’s health condition on the day the will was made was described by a doctor as critical; a life-threatening situation was noted. The testator refused hospitalization andsigned an acknowledgment. Subsequently, a will was recorded in the presence of three witnesses, who signed it – but not the testator herself..

After the death, the appointed sole heir applied for a certificate of inheritance based on this emergency will. The probate court rejected this, and the Higher Regional Court of Munich confirmed the decision.

Reason: No sufficient proof that the testator was unable to sign

According to the Higher Regional Court, the signature of the testator was a mandatory prerequisite for validity. An exceptional case (signature dispensable) requires clear proof that the testator was indeed no longer able to sign.

This proof was not successful here – also because the testator had signed another declaration by hand about 1.5 hours earlier. The court concluded that, in any case, it could not simply be assumed that she could no longer sign.

Additional doubts: Was a notary truly unreachable?

The Higher Regional Court also expressed doubts as to whether the condition of “unreachability” was met. If only a notary’s answering machine is reached, it can – depending on the situation – be expected to make further attempts to contact (e.g., other notaries). An emergency will should be the last resort.

Legal consequence: Invalid emergency will – the statutory succession often applies

If an emergency will is invalid due to formal reasons, it does not have any legal effect. Then, generally applies:

• a other valid will, if available, or
• otherwise the statutory succession..

Especially in urgent situations, the risk is high that formal requirements are not properly documented – with the result that a clearly expressed intention cannot be legally realized.

Other important points often overlooked

An emergency will is only valid for a limited time

A three-witness will is usually not permanent as a substitute for a regular will. According to the law, it loses its effect if the testator survives the emergency and has the opportunity to create a will in the proper form again (usually after a statutory period). Therefore, anyone who overcomes an acute crisis should promptly create a holographic will (§ 2247 BGB) or a notarial will (§ 2232 BGB).

Documentation is crucial

In practice, emergency wills often fail due to inadequate documentation: the time, emergency, content of the declaration, presence of witnesses, and capability to sign should be clearly recorded as much as possible.

Practical advice: Plan ahead

The decision of the Higher Regional Court of Munich makes it clear: The emergency will is an instrument for absolute exceptional cases – and legally risky. To avoid the risk of one’s last will failing later due to formal issues, one should plan ahead and create a will or inheritance contract in a stable situation.

For questions regarding wills, inheritance contracts, or estate administration, legal advice can help to implement arrangements cleanly and avoid disputes in the event of inheritance.