Decision of the Higher Regional Court Zweibrücken dated August 7, 2025 – Case No. 8 W 66/24
A testator should ensure that their will is securely stored but also findable. When naming the heirs, it is important to clearly identify the respective persons to avoid later uncertainties. If the original will is lost, a copy can suffice as proof of heirship. However, strict requirements apply to this, as demonstrated by a decision of the Higher Regional Court Zweibrücken dated August 7, 2025 (Case No. 8 W 66/24).
High demands are placed on a copy of a will in inheritance certificate proceedings. The creation, form, and content of the will must be proven to such a high degree as if the original document were actually available. An important question is which uncertainties may arise in estate planning and the burden of proof. Ideally, witnesses should be able not only to confirm the existence of the testamentary disposition but also that the testator signed the will, according to the law firm MTR Legal Attorneys, which advises among others on inheritance law. The date plays a crucial role for the legal validity and comprehensibility of the will, especially in the case of multiple versions or changes. There are various forms of wills, such as the handwritten (holographic) will and the notarial will, each of which imposes different requirements on form and evidentiary value.
Original Will Not Findable
In the underlying case before the Higher Regional Court Zweibrücken, the deceased’s former partner applied for the issuance of a certificate of inheritance designating her as the sole heir – partners, spouses, or life partners can also be appointed as heirs in a will. She based her application on a copy of a handwritten will, which was allegedly created and signed by the testator personally. The original will could no longer be found. A sole heir is a person who receives the entire estate of the deceased, as opposed to a community of heirs, where several heirs jointly share and manage the estate.
The applicant presented two female witnesses who were said to have been present during the creation of the will. Children, parents, or siblings can also play a role in statutory inheritance or as witnesses and heirs in the will. These witnesses testified that the testator created and read aloud the will himself. The handwritten creation and signature on each page are of great importance for the effectiveness of a will to ensure legal certainty. Furthermore, the testator’s capacity to make a will is a prerequisite for the creation of a valid will. However, neither witness could confirm that the testator actually signed the will. When drafting a will, it is important to provide detailed information about accounts, insurance policies, and assets; rules can be made regarding the distribution of heirlooms and assets, and individual parts of the estate can be assigned to specific persons. Statutory inheritance applies if there is no valid will or inheritance contract and differs from the individual arrangements that can be made in the will. A notarial will offers additional advantages over a handwritten will, such as legal certainty through notarization and official storage. Decisions and arrangements in the will are of central importance for the family and inheritance law, as they create clarity about the distribution of the estate. Correct specification of all relevant data in the will is indispensable for comprehensibility and legal certainty in inheritance cases. The probate court rejected the application due to doubts about the authenticity and formal validity of the will. The applicant appealed this decision, which the Higher Regional Court Zweibrücken dismissed.
Official Storage
The official storage of a will is a central component of German inheritance law and offers a high level of security for both the testator and the heirs. Those who want to ensure that their last will is reliably executed after death can have their will placed in official storage. In Germany, two options are available for this: handover to a notary or directly to the competent probate court.
With official storage, the will is officially registered and securely kept. The notary or probate court ensures that the document is recorded in the central wills register. This guarantees that the will can be quickly found and submitted to the probate court after the testator’s death. This prevents the testator’s will from being disregarded due to loss, confusion, or even deliberate destruction of the will.
In the event of death, the probate court is automatically informed about the existence and content of the officially stored will. The court opens the will and enforces the succession stipulated therein. For the heirs, this means clarity and legal certainty, as official storage largely excludes manipulation and disputes about the authenticity or whereabouts of the will.
Official storage is therefore an important step for people who want to arrange their estate and the distribution of their assets according to their own wishes. It protects the testator’s last will and facilitates the organization of the estate for all parties involved.
Copy Only Sufficient in Exceptional Cases
In its reasoning, the Higher Regional Court explained that a copy of a will can only suffice in very limited exceptional cases. As a rule, the original will must be presented because only in this way can the proper formal execution be verified. The submission of a copy is only sufficient if the original was lost or destroyed without the testator’s involvement or consent and if the establishment, form, and content of the testamentary disposition are as certain as if the original were actually present. Testamentary dispositions, such as wills or inheritance contracts, must be clearly substantiated in the certificate of inheritance procedure to evidence the testator’s legal arrangements regarding his assets.
The court further emphasized that the burden of proof is subject to particularly high standards. It is not sufficient that witnesses merely recount the content of the will; rather, they must also credibly confirm that they saw the testator sign it personally. Written statements by witnesses, bearing place, date, and signature, can contribute to confirming the contents of the will and clarifying the circumstances.
Higher Regional Court rejects application for certificate of inheritance
The witnesses were unable to meet these requirements. They already gave differing accounts of the execution of the will. While one witness stated that the will was written during dinner, the other believed it was only created after the meal. Furthermore, according to the court, the description of the circumstances did not correspond to the complexity of the submitted copy. This copy comprised several pages and contained detailed information about accounts, insurances, and assets. To the Higher Regional Court, it seemed hardly plausible that the will was actually written spontaneously during dinner. The judges critically examined the credibility and plausibility of the witnesses’ statements. It was particularly serious that none of the witnesses could confirm that the testator personally signed the will. This confirmation is required to assume the creation of a legally valid will. Therefore, the court did not regard the preparation of the will as sufficiently proven and rejected the application for issuing a certificate of inheritance.
Protection against forgeries
The background for the decision is likely that a will generally represents a highly personal declaration by the testator, whose formal requirements serve to protect against forgery and misunderstandings. By means of the will, the testator determines the fate of his assets after death. If the original can no longer be found, there is always the possibility that the testator deliberately destroyed it to revoke it. In such cases, a copy must not automatically be accepted as a replacement. Only if it can be credibly demonstrated that the loss of the original occurred without the testator’s involvement, for example due to fire, theft, or error, and if the establishment, form, and content are conclusively proven, can a copy exceptionally suffice, whereby testamentary dispositions generally only become effective upon the testator’s death.
MTR Legal Attorneys advise on wills, inheritance contracts, and other topics of inheritance law.
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