One of the prerequisites for a will to be valid is that the testator must have been capable of preparing the will in the first place, which is all the more reason to start thinking about drafting one in good time before this is no longer an option.
In Germany, the rules of intestate succession state that it is the deceased’s close relatives who are first in line to inherit. If someone wants to avoid this outcome for their estate, they have the option of drawing up a will and naming their heirs. But in order for the will to be valid, the testator must have the capacity to make a will. It is important to stress the difference here between testamentary capacity and legal capacity, notes commercial law firm MTR Legal Rechtsanwälte.
Once someone reaches the age of majority, they generally have full legal capacity unless they suffer from a mental disorder or disturbance. Intellectual disabilities, delusions, as well as illnesses such as dementia, have the potential to render someone incapable of contracting (legal incapacity). Testamentary capacity – the ability to make a will – needs to be assessed independently of legal capacity. To be capable of making will, the testator must first and foremost be aware that they are preparing their last will and testament and be aware of its attendant implications, and this must be done of their own free will and not under the influence of others.
If at the time of preparing the will the testator lacks testamentary capacity, then their testamentary instructions are invalid. Such was the outcome of a case heard by Celle’s higher regional court – the OLG Celle – in which the testator, a single and childless woman, left behind a multimillion-euro estate to her tax advisor of many years, whom she designated as her sole heir both in a will and later in a notarized contract of inheritance.
Following her death shortly thereafter, doubts began to emerge among her relatives and the relevant probate court about her capacity to prepare a will in the first place. The court therefore sought the opinion of a psychiatric expert, who ultimately concluded that the testator had suffered from delusions and had thus lacked testamentary capacity. Accordingly, the court ruled that the will was invalid. Despite initially lodging an appeal against the ruling, the testator’s former tax advisor would go on to withdraw his appeal after the OLG Celle made it clear that it found the psychological assessment compelling and that the appeal would not succeed.
The team of inheritance experts at MTR Legal advises on all things will-related.
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