The making and revocation of a will under German inheritance law

Ratgeber - Erbrecht Mehr zum Thema: Erbrecht, testament, German

The article gives an introduction the making and revocation of a last will and testament under German inheritance law.

Capacity to make a testament

According to §2229 sec. 1 BGB a minor may only make a will upon reaching the age of sixteen. Upon reaching sixteen a minor can make a will without obtaining the consent of his legal representative (see § 2229 sec. BGB). However, a minor cannot make a holographic will (see § 2233 sec. 1, § 2247 sec 4 BGB). A person incapable of understanding the testamentary disposition process due to mental incapacity including unsound mind, temporal derangement, and/or dementia cannot make a valid will (see §2229 sec. BGB). Whoever claims that the testator lacked testamentary capacity carries the burden of proof.

Form of a testament

The testator can choose between two forms of regular wills (§2231 BGB): the public testament (§2232 BGB), and the holographic testament (§2247 BGB).

Holographic testament

A testator may make a valid will wholly by his or her own handwriting and signature (see § 2247 sec. 1 BGB).

Please note: If German inheritance law applies the presence, attestation or signature of a witness is not necessary!

A will which was written on a typewriter or computer is not handwritten even if it was signed by the testator. The signature of the testator must be made following the end of the text of the will and must be made by the testator in person (see § 2247 sec. 1 BGB). A signature on an envelope containing a testament may only be sufficient if the letter was closed. But even in this case the testament may be void.

The testator should state the time and the place where he made the will. However, if the testator fails to do so, the testament is still valid, if time and place can be determined otherwise (see § 2247 sec. 5 BGB).

The signature should contain the first name and the surname of the testator (see § 2247 sec. 3 BGB). However, if the testator fails to do so and the testament is still valid if the identity of the testator can be determined without doubt on the grounds of this signature and it can be assumed that the testator had the serious intention to make a will (see §2247 sec. 2 BGB).

Codicils and additions to a testament must always be signed separately.

Witnesses are not required for the validity of a holographic testament and will not make a void testament

Irregular testaments

In emergency situations, particularly where the testator is close to death, the testator may make a will under special requirements, e.g. in the presence of the mayor (see § 2249 BGB) or in the presence of three attesting witnesses (see §§ 2250, 2251 BGB).

Testamentary dispositions

The testator may

• appoint an heir (see § 1937 BGB)
• exclude statutory heirs from succession (see § 1938 BGB)
• bequeath individual assets to an heir or another person (see § 1939 BGB)
• impose a burden on an heir or a legatee (see § 1940 BGB)
• make provisions with regard to the distribution of the estate (see §§ 2044, 2048, 2049 BGB)
• appoint an executor (see § 2197 BGB)

Revocation of a last will and testament

The testator may at any time revoke or modify a will or part of a will (see § 2253 BGB). A will or part of a will is revoked only by,

• another will (§§2254, 2258 BGB),
• a writing declaring an intention to revoke, and made in accordance with the provisions governing making of a will,
• destruction (e.g. burning, tearing) by the testator (§ 2255 BGB)
• or by withdrawal of the testament from official custody (§ 2256 BGB).

If revocation is made by testament, the revocation itself may be revoked (e.g., by destruction); in this case the original testament is effective (see § 2257 BGB). The right to revoke a testament may be limited by way of a contract of inheritance or a joint will.

The joint will

According to §§ 2265-2273 BGB spouses can make a joint will. A joint holographic may be hand written by only one spouse. However, both spouses have to sign the testament in accordance with § 2247 BGB. A joint public may be made in accordance with §§ 2231 sec 1, 2232 BGB.

Mutual testamentary dispositions

A testamentary disposition in a joint will is mutually connected with another testamentary disposition if it would not have been made without that disposition (see § 2270 sec. 1 BGB). According to § 2270 sec. 2 BGB, unless otherwise provided, it is presumed that a testamentary disposition is mutually connected to another testamentary disposition if the estate shall pass over to the surviving spouse and after the death of the surviving spouse to a relative or otherwise related person (e.g. friend) of the predeceased spouse. According to § 2270 sec. 3 BGB, § 2270 sec. 1 BGB does not apply to dispositions other than those concerning the appointment of heirs, testamentary bequests or testamentary burdens. Any other testamentary disposition, e.g. administration of the estate, is not mutual.

If a mutual testamentary disposition is revoked or invalid, the corresponding testamentary disposition is invalid, too (see § 2270 I BGB). During the lifetime of the other spouse, every spouse may revoke his own disposition in accordance with § 2296 BGB. However, this revocation may not be made in a new, unilateral will. After the death of one spouse, mutual testamentary dispositions of the other spouse can, in principle, not be revoked anymore and are binding. However, if the surviving spouse renounces the inheritance, he is free to change his will (§ 2271 II l BGB).