Wills and Testaments in Germany

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Foreign-Language Rubrik, Will, Testament, Probate, estate, Germany, heritage, heir

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Execution and Revocation

Statistically, most persons in Germany die without a will. The only thing that can be said about the reasons for this from a legal perspective is that it is certainly not the case that high formal requirements are the cause of this. In fact, the requirements are very low. Holographic wills are valid if signed and preferably also dated by the testator (Sect. 2247 BGB).

On the other hand a computer print-out which is signed by the testator is not valid under german law, unless it is deposited in the office of a german notary public, thereby becoming a german public will (Sect. 2232 BGB). The number of wills that have failed because the testator did not deposit the typewritten will at a german notary might very well have increased over the last decades in which personal computers have become so widespread. If however foreigners are concerned or the will was at least executed in a jurisdiction that allows typewritten wills, the will can still be upheld as formally valid under foreign law (Art. 26 EGBG). This usually helps in respect to common law jurisdictions. There is no need for the mutual presence of two competent witnesses at the time of execution. The testator himself of course has to be competent at the time of execution of the will (Sect. 2229 Para 4). The mere existence of a guardian as such does not presume that the testator is incompetent to make a valid will (Bavarian Supreme Court of Appeals 1982, BayOLGZ 1982, 309 on page 312) but the probate court will have to inquire into the testator’s state of mind even if there is a guardian and the testator is in a home for the elderly.

Andre Jahn
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123recht.net
Rechtsanwalt
10407 berlin
Erbrecht, Steuerrecht, Internationales Recht

A valid will may be revoked later in whole or in part (§ 2253 BGB). One exception to this general rule is a mutual will made by two spouses if it includes certain provisions that can make this type of will binding even after the death of one of them (Sect. 2269 BGB). A will is revoked by a later will by operation of law (Sect. 2254 BGB). It may also be revoked by physical destruction or at least modifications of the physical deed (Sect. 2255 BGB), if the testator’s intention is to revoke the will. There are occasionally troublesome cases in which the testator instructs a third person, for a example the bank where the will is deposited, to destroy the will, and the bank does not do this. In this case the revocation is not valid but the will still is revoked (Bavarian Supreme Ct. of Appeals, judgment from April 11th, 2011 docket number 31 WX 33/11).

If you have any further questions about probate, estate, trust and tax matters in Germany or the EU, please do not hesitate to contact the author by an email to: info@jahn-law.com.