Decision of the OLG Oldenburg – Az.: 3 W 96/23
There is a lot to find behind the counter. Glasses and drinks, of course, coasters, maybe a deck of cards or dice cup. In very rare cases, a will can also be found there. Exactly that happened to the partner of a deceased innkeeper. She found a will behind the counter on a pub pad, in which her partner had appointed her as the sole heir. The OLG Oldenburg had to decide whether the will was also valid (Az.: 3 W 96/23).
There are various formal requirements to be observed for a will. A handwritten will must be created entirely by hand from beginning to end in order to be valid. The testator’s handwritten signature alone is not sufficient for this. It is also advisable to date the will and to provide it with a clear signature such as “My last will” in order to avoid misunderstandings. However, there is no regulation on which document a will must be created, according to the law firm MTR Legal lawyers. The fact that a will can also be validly created on a pub pad is shown by a decision of the OLG Oldenburg dated December 20, 2023.
“BB gets everything”
In the underlying case, an innkeeper had died. His partner discovered his will more or less by chance on a pub pad lying behind the counter. The testator had drawn up his will in a few words with a signature and date on the pad. In his handwriting, the note simply said that BB gets everything. BB was the nickname of the deceased innkeeper for his partner.
She then applied for the issuance of the certificate of inheritance, which the competent district court rejected. The court justified its decision by stating that it could not be clearly established whether the testator wanted to create a will on the pub pad. The required testamentary intention was not apparent.
The 3rd Civil Senate of the OLG Oldenburg, focused on inheritance law, saw it differently. He ruled that the handwritten text on the pub pad was a valid will. The Senate is convinced that the document was written by the testator himself. With the nickname mentioned in the will, the innkeeper could only have meant his life partner, according to the OLG.
The document does not matter for a valid will
According to witnesses, the innkeeper was not a friend of long correspondence. This suggests that he wanted to bindly regulate his estate with the short note and that the required testamentary intention was not lacking. The fact that he used the pub pad to create the will because it was just handy fits the picture. This also applies to the storage of the will behind the counter among the open lids of his customers. Because it was the testator’s nature to keep important documents behind the counter. The fact that the will was created on an unusual document, not marked as a will, and stored behind the counter does not matter, according to the OLG. For the assumption of a will, it is sufficient that the testamentary intention of the testator can be clearly determined and the note bears the signature of the partner. The will was therefore validly created and the testator’s partner became the sole heir, decided the OLG Oldenburg.
Will especially important for unmarried couples
The four children of the testator’s deceased sister had doubts about the validity of the will. In the end, however, they go away empty-handed.
But it also shows that it is extremely important, especially for unmarried partners, to draw up a will. Because without a will, the statutory succession applies. In the present case, this means that the nieces and nephews of the testator would have inherited and his partner would have been left empty-handed.
Although the OLG Oldenburg considered the will on the pub pad to be valid, it is advisable to draw up a will as clearly as possible in terms of form and content, so that the last will is also implemented in the sense of the testator and inheritance disputes can be avoided.
MTR Legal lawyers advise on questions of wills and other topics of inheritance law.
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