OLG Celle: notarial will null due to immorality

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Caretaker of the deceased has no claim to the inheritance

A will is considered immoral if it exploits a predicament of the testator. The Higher Regional Court (OLG) of Celle has clarified with a decision on January 9, 2024, that immorality may be present if a professional guardian exploits their position to influence a susceptible testator into appointing them as the heir (Reference number: 6 W 175/23). This also applies to a notarial will.

A will can be deemed immoral and thus null and void for various reasons. Immorality is assumed, for example, when a testator’s predicament or weakness is exploited to appoint a specific person as heir. Other reasons for immorality may include a remarriage clause or a violation of laws, according to the commercial law firm MTR Legal Attorneys, which also provides advice on inheritance law.

Exploitation of the testator’s predicament

In the case before the OLG Celle, the court saw an exploitation of the testator’s predicament by her caretaker and declared the notarially drafted will immoral.

The testator was a 92-year-old woman. Until then, her only daughter had taken care of her affairs. However, the daughter passed away in September 2022. At that time, the mother was in the hospital. Two days after the death of the daughter, the district court appointed a professional guardian for the mother. This guardian commissioned a notary to draft a will. In the will, the 92-year-old appointed her professional guardian as the sole heir to her estate, valued at approximately 350,000 euros. The notary authenticated the will in the hospital. Shortly after leaving the hospital, the testator was taken in by the professional guardian. The testator passed away just four days later.

Court rejects application for certificate of inheritance

When the guardian applied for the certificate of inheritance, the competent district court rejected the application due to immorality. The OLG Celle dismissed the guardian’s appeal.

The OLG explained that the notarial will was immoral according to § 138 BGB (German Civil Code) and thus null and void. With this, the OLG maintained its stance from a legally binding judgment on January 7, 2021 (Reference number: 6 U 22/20), that a notarial will in favor of a professional guardian can be immoral. The OLG Celle primarily based the immorality on the advanced age of the testator, her poor health, and her distressed psychological state due to the death of her daughter and the close timing between the establishment of guardianship and the drafting of the will.

Due to its immorality, the will is null and void. Consequently, the statutory order of succession applies again.

MTR Legal Attorneys provides advice on wills and other inheritance law questions.

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