Decision of the Brandenburg Higher Regional Court (OLG) from March 19, 2024, Ref.: 3 W 28/24
Depression and alcoholism do not automatically lead to incapacity to make a will. The Brandenburg Higher Regional Court made this clear in its decision of March 19, 2024 (Ref.: 3 W 28/24).
Severe mental illnesses can result in the incapacity to make a will. According to § 2229 para. 4 BGB, a person is deemed incapable of making a will if, due to illness, they are unable to comprehend the significance of their declaration of intent and act accordingly. However, this does not mean that a severe mental illness necessarily leads to incapacity to make a will, explains the commercial law firm MTR Legal Attorneys, which also advises on inheritance law.
In the present case, the Brandenburg Higher Regional Court had to decide whether the deceased was capable of making a will. In March 2020, the deceased had handwritten a will stating that his stepdaughter should inherit “all his possessions.” These possessions included bank balances, real estate, and a small garden with a bungalow.
Deceased Suffered from Severe Depression
At the time, the deceased was already seriously ill. In addition to various physical ailments, he suffered from severe depression, up to a bipolar disorder. He was also an alcoholic and had been under specialist medical treatment for years.
In July 2020, about four months after making the will, the deceased committed suicide. In his farewell letter, written three days earlier, he made it clear that he had carefully planned this decision. In an older farewell letter dated April 1, 2020, he stated that his illnesses had led to his decision to commit suicide and that he only wanted to settle his inheritance matters before his death.
Incapacity to Make a Will Due to Mental Illnesses?
After the deceased’s death, the stepdaughter applied for a certificate of inheritance, naming her as the sole heir. However, the deceased’s sister objected, arguing that her brother was not capable of making a will due to his mental illnesses, making the will invalid.
The probate court granted the certificate of inheritance after consulting the attending physician and obtaining an expert opinion on the deceased’s capacity to make a will. According to the attending physician, the deceased could understand the significance of his decision and was capable of making a will. This view was supported by the expert opinion, which indicated that despite his illnesses, there were no signs that the deceased was unable to comprehend the significance of his declaration of intent. He had planned his inheritance matters, as stated in his farewell letter.
Brandenburg Higher Regional Court: No Incapacity to Make a Will
The deceased’s sister appealed against the probate court’s decision, but her appeal was unsuccessful at the Brandenburg Higher Regional Court. The court clarified that incapacity to make a will only exists if the testator is unable to understand the significance of their declaration of intent and assess its consequences due to pathological disturbances of mental activity, mental weakness, or consciousness disorders.
The deceased’s alcoholism alone did not constitute incapacity to make a will. Alcoholism can only be considered a pathological disturbance of mental activity if it results in a deterioration of personality equivalent to a mental illness, mental weakness, or pathological disturbance of mental capacity, the court stated. There were no substantial indications that the deceased was so intoxicated when making the will that his capacity to make a will was impaired. The text of the will was fluent, content was coherent, and written in a steady hand. Neither the handwriting nor the content suggested any impairment of the deceased’s mental abilities, the court noted.
It also could not be assumed that the bipolar disorder impaired the deceased’s capacity to make a will. Although depression can lead to incapacity to make a will at times, this was not the case with the deceased based on the expert opinion, the court continued. Therefore, the will was valid.
MTR Legal Attorneys advises on matters related to wills and other inheritance law topics.
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