Capacity to Test Despite Illness

Decision of the Higher Regional Court of Brandenburg from August 15, 2025 – Ref. 3 W 65/24

Whether a deceased person (testator/testatrix) was competent to make a will at the time of its drafting is one of the most common points of contention in inheritance law. The decision of the Higher Regional Court (OLG) of Brandenburg from August 15, 2025 (Ref. 3 W 65/24) clarifies: High standards are set for the proof of incapacity to make a will. Illnesses – even severe ones – do not automatically render a will invalid.

What does testamentary capacity mean – and when does incapacity to make a will occur?

The legal basis can be found in § 2229 Paragraph 4 BGB. According to this, a person is incapacitated to make a will if they, due to a

• pathological disturbance of mental activity,
• mental weakness, or
• consciousness disorder

cannot comprehend the meaning of a last will and testament and act according to this understanding.

Important is the specific standard of review: The testator must be able to understand the implications of their decision (e.g., who will inherit, who is excluded, what economic consequences this might have) and must also be able to form and execute their own, free will. Incapacity to make a will is only present if this ability to comprehend or control is suspended specifically at the time of making the will due to illness.

Rule: Presumption of testamentary capacity – Exception: Incapacity to make a will

The starting point is: It is generally assumed that a person has the capacity to make a will. Anyone challenging a will on grounds of incapacity must present and prove the facts from which the incapacity is to be derived. Doubt weighs against the person claiming the invalidity.

This is particularly relevant with common medical conditions: Even a diagnosed dementia, depression, or other neurological or psychiatric disorder does not automatically mean that the will is invalid. What remains crucial is whether the specific illness actually excluded free will formation at the time the will was drafted.

The Case before the OLG Brandenburg: Multiple Wills, Different Expert Opinions

In the decided case, the testatrix had drafted multiple, partially contradictory wills. Initially, the granddaughter, later the son was appointed as sole heir. After the testatrix’s death, the granddaughter contested the later dispositions. She claimed that the grandmother was no longer competent to make a will when drafting the later ones and referred, among other things, to mental and neurological disorders, depressive episodes, cognitive impairments, and hospital stays.

In the proceedings, there were several expert reports, which were not consistent. Such constellations are common in practice: Medical findings exist but are either not timely or do not allow a conclusive statement about the crucial time.

Decision of the OLG: Incapacity to Make a Will Not Conclusively Establishable

The OLG Brandenburg concluded that incapacity to make a will could not be determined with the required certainty. Thus, the presumption of testamentary capacity remained, and the son was confirmed as sole heir.

The court emphasized that the presumption of testamentary capacity must not be “undermined” by mere general indications of health limitations. It is insufficient that incapacity to make a will appears possible or cannot be excluded. What is required is a conviction of the court that the ability to comprehend or control was indeed suspended at the critical moment.

Timing Matters: Health Condition Precisely When Making the Will

A central point of the decision is the temporal component. Critical is the condition of the testatrix when drafting the respective will. Medical records or expert opinions significantly before or after help only if they enable a substantial retrospect on the specific time of drafting.

In this specific case, while the existing reports could provide indications of health impairments, they did not sufficiently prove that the deceased, at the specific moment of making the will, was unable to recognize the significance of her declaration or act accordingly. The higher regional court based its decision particularly on a court-ordered expert report, which stated that no definitive diagnosis of dementia or any other relevant psychiatric syndrome could be established. Even later findings did not allow, in the court’s view, reliable conclusions to be drawn about the decisive moment. Furthermore, there were no substantial indications of influence due to illness.

What does the decision mean for practice?

The decision enhances legal certainty: A will cannot be declared invalid solely because of an illness or general doubts. Those who claim testamentary incapacity regularly needconcrete, timely, and erection-time-related facts – such as medical documentation around the day of creation, meaningful findings, care or hospital records, as well as testimonies from people who directly experienced the condition of the deceased during this period.

Conversely, the decision also shows: In the absence of temporal proximity or in the case of an ambiguous medical situation, the hurdle is high. In such cases, the rule remains that testamentary capacity is assumed, and testamentary incapacity is the exceptional case that requires justification and evidence.

Note

This article serves general information purposes and does not constitute individual advice. The legal assessment always depends on the circumstances of the individual case, especially on existing documents and the specific course of creating the will.

If you have questions about wills, inheritance, or contesting last wills, a legal examination of the individual case may be advisable.