20. Jan 23

New signature does not make a will that has been revoked valid again

A will that has been validly revoked does not become valid again just because the testator provides a new signature as part of their last will and testament. That was the verdict of Munich’s Higher Regional Court, the Oberlandesgericht (OLG) München.

A will enables the testator to appoint heirs that may differ from those under the rules of intestate succession. If circumstances change such that the testator decides to revisit their decision, we at the commercial law firm MTR Rechtsanwälte note that it is possible to revoke the testament.

Should the testator change their mind once again and seek to return to the arrangements set out in the will that was validly revoked, a new signature plus the date is not going to cut it. The will needs to be validly redrafted. Case in point: a ruling of the OLG München from January 26, 2022 (case ref.: 31 Wx 441/21).

The testator in that case had drawn up a notarial will in 2017, only to handwrite a new will one year later revoking the original will. Mere months following this decision, however, she would seek to return to the notarial will from 2017, signing and dating a certified copy of the will on the assumption that its provisions were now valid again.

But this assumption was mistaken. The OLG München held that the original, validly constituted will could not be resurrected by signing the certified copy, which neither produced a valid will nor revoked the handwritten will from 2018. The Court definitively clarified that the notarial will from 2017 had not been revived by the new signature.

This would have required a validly constituted will in the form of a declaration that was either entirely handwritten and signed, or made in the presence of a notary. The OLG München concluded that because neither a new notarial will had been drawn up, nor an original, handwritten will signed again, the arrangements laid out in the will from 2018 were authoritative with respect to succession.

The ruling highlights the need to comply with strict formal requirements when drafting or revoking a valid will. Lawyers experienced in dealing with succession can provide counsel.

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