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Emergency will as an exceptional form of testamentary disposition
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The German Civil Code provides, for situations in which making a will in the usual form does not (or no longer) appear possible, narrowly limited alternative forms. This includes the so-called three-witness will as an emergency will. It is only an option if the specific statutory requirements are met and the formal requirements are strictly complied with. Otherwise, it has no effect under inheritance law.
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Subject of the decision of the Higher Regional Court (OLG) Hamm of 02/04/2024 (10 W 75/22)
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Dispute over the validity of a three-witness will
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In the proceedings underlying the decision, the Higher Regional Court (OLG) Hamm had to decide whether a testamentary disposition declared as an emergency will had been validly made. The decisive issues were whether the statutory requirements for a three-witness will were in fact satisfied and whether the required formalities had been observed.
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Procedural nature and classification
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The decision was made within the framework of inheritance-law proceedings in which the validity of a testamentary disposition was relevant to the succession. The decision concerns the civil-law review of the formal and substantive requirements of an emergency will. (Source: OLG Hamm, order of 02/04/2024, case no. 10 W 75/22, published inter alia via urteile.news.)
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Statutory requirements for the three-witness will
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Exception: execution only in cases of special urgency
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A three-witness will is not a freely selectable form of arrangement; it is tied to an exceptional situation. It is permissible only if, under the statutory provisions, the testator is unable to make a will in the regular form and execution before a notary does not appear possible, or not possible in time. Thus, validity requires not only the declaration of a last will, but also the existence of a qualified emergency situation.
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Required: three witnesses and a formal declaration
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The testamentary disposition must be declared in the presence of three witnesses who are simultaneously present. The law also sets requirements for proper recording and for compliance with the prescribed formalities. The witnesses’ function serves to secure provability and to monitor the circumstances under which the will was expressed.
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Main points of the judicial review
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Standard: strict application of the exceptional provision
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The OLG Hamm places the exceptional character of the emergency will in the foreground. Accordingly, the question of whether the requirements were actually met is not assessed generously, but on the basis of a narrow statutory standard. The mere fact of an illness or a situation perceived as burdensome is not sufficient in itself if execution in a regular form would objectively have been possible.
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Emergency situation and accessibility of notarial execution
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The focus is on assessing whether notarial certification was not accessible under the circumstances of the individual case or could not be obtained in time. For validity, the actual circumstances at the time the will was made are determinative. The court explains that the three-witness will is not intended to open up simplified formal options, but only to enable the last will in an acute exceptional situation.
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Strict formal requirements and consequences of deviations
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The court also emphasizes the importance of the formal requirements. Deviations from the statutory requirements can result in invalidity, because the emergency will—precisely due to its particular risk situation (for example with regard to mistakes, undue influence, or evidentiary problems)—is recognized only if the safeguarding mechanisms are complied with.
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Significance for inheritance-law practice
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The decision makes clear that the three-witness will is only an option under narrow conditions and is regularly subject to strict judicial review of validity in legal disputes. This can have significant consequences for the succession, because if the emergency will is invalid, the statutory succession or another valid testamentary disposition remains decisive.
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Classification by MTR Legal Attorneys at Law
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As an internationally active full-service business law firm, we also advise companies, investors, and high-net-worth private individuals on matters of wealth succession and the validity of testamentary dispositions. Anyone who needs clarification in connection with an emergency will or the interpretation and enforcement of positions under inheritance law will find information on how to get in touch for individual legal advice in inheritance law at MTR Legal.
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