Requirements for the recognition of a copy of a will as a valid testamentary disposition
Inheritance disputes often arise when the original of a handwritten will cannot be found, but a copy can be presented. The decision of the Higher Regional Court (OLG) Zweibrücken dated August 13, 2024 (Ref.: 8 W 66/24, source: urteile.news) makes it clear that particularly strict requirements apply to the recognition of a copy of a will as the testator’s last will.
Background of the court decision
In the underlying proceedings, the central issue was whether a scanned and printed copy of a handwritten will would be sufficient proof of entitlement to inheritance if the handwritten original remained missing. The applicant, who claimed to be sole heir based on the copy of the will, applied for a certificate of inheritance. The competent courts in ex officio investigations had to determine whether the submitted duplicate was consistent with the testator’s intention for it to be valid at the time of death.
Relevant legal principles of inheritance law
Section 2247 of the German Civil Code (BGB) expressly provides that a will is generally only valid if it is written entirely by hand and signed by the testator. Any deviation from this requirement—such as the submission of a mere copy—can only be considered in narrowly defined exceptional cases. With this, the legislator aims to ensure legal certainty and to prevent manipulation in probate proceedings.
Burden of proof
A key point in judicial review is the burden of proof: Anyone wishing to claim rights based on a copy must provide substantiated evidence that the original was handwritten by the testator and had not been destroyed at the relevant time. This typically requires an uninterrupted chain of circumstantial evidence clearly demonstrating that the will was not revoked.
High standards for proof
Case law requires that, according to its free evaluation of evidence under section 286 of the German Code of Civil Procedure (ZPO), the court must be convinced that the original will was consistent with the submitted copy, and that this very original consistently documented the testator’s wishes until their death. Even if the text of the copy is identical to the presumed will, this alone is insufficient. Instead, additional circumstances—such as a lack of access by third parties, secure storage, or the conviction that the loss was accidental—must also be present.
Decision of the OLG Zweibrücken
In consequence of applying these standards, the OLG Zweibrücken denied in the present case that the requirements for accepting a valid will based on a duplicate were met. Statutory succession remained in effect, as the applicant was unable to convincingly demonstrate that the original will continued to reflect the testator’s presumed intentions and that an intended revocation could be ruled out. The decision was mainly guided by the lack of sufficient evidence that the testator had not personally destroyed the will.
Implications for estate planning and inheritance cases
The decision underscores the central importance of proper safekeeping of wills. Uncertainty is particularly common in inheritance cases when the original cannot be found and only a copy exists. Case law protects the authenticity and integrity of the last will through strict requirements designed to prevent manipulation and abuse. At the same time, it highlights the crucial role that formal requirements play in German inheritance law.
Outlook
The recognition of copies of wills as valid testamentary dispositions remains the exception and is subject to considerable evidentiary hurdles. For relatives and potential heirs, this often means significant uncertainty and the need to carefully secure all available evidence and witness statements if the original can no longer be found.
Legal notice
Whether and under what circumstances a copy of a will may exceptionally be recognized as a valid testamentary disposition always depends on the specific facts of the individual case and can be assessed in detail based on current case law.
The Rechtsanwalt at MTR Legal support companies, investors, and private individuals in the field of inheritance law—for example regarding the interpretation of wills and estate planning. If you have questions about handling copies of wills or legally secure estate planning, you are welcome to contact us.
Note: The information in this article serves as a general overview of the legal situation regarding inheritance law and does not replace individual legal advice.
