17. Jun 16

GRP Rainer: Assessing intention to prepare a will

A prerequisite for an effective will is a serious intention on the part of the testator to prepare one. Assessing any intention to draft a will can prove to be critical.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: A personally handwritten will is subject to very few requirements pertaining to form, but it must include a signature and date. It should also feature a heading such as “my final will” or similar wording that clearly indicates that it is a will. Accordingly, it is possible to write a will on notepaper, napkins or beer coasters. However, while such a will may be valid in theory, using an unusual blotting pad could in practice give rise to doubts as to whether the testator seriously intended to prepare a will. This is evident from a ruling of the OLG Hamm (Higher Regional Court of Hamm) from November 27, 2015 (Az.: 10 W 153/15).

In that case, disputes had arisen among the heirs of a widowed testatrix. Following her death, her daughter applied for a certificate of inheritance as per the rules of intestate succession. However, the deceased’s grandchildren submitted two documents that supposedly designated their father as the heir. Having said that, these documents raised doubts regarding the serious intention to draft a will. The first document was a small cut-out slip of paper featuring spelling mistakes and ambiguous wording, whereas the second purported will had been written down on a sheet of parchment paper. Both the content and presentation of the documents gave rise to considerable doubts among the judges at the OLG Hamm as to whether the testatrix seriously intended to prepare a will. Because it could not establish this fact with sufficient certainty, the Court rejected the grandchildren’s application for a certificate of inheritance.

The use of unusual blotting pads was also a factor that raised doubts regarding the serious intention to draft a will in the case. Even though the law does not specify any requirements pertaining to blotting pads, a will really ought to be prepared on an appropriate pad to prevent any doubts of this kind from arising in the first place. Where possible, a will should always be written in such a way that it leaves no scope for interpretation so that the testator’s final wishes can actually be implemented and disputes among the heirs avoided. Lawyers who are experienced in the field of succession law can assist in all matters relating to wills and contracts of inheritance.

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