21. Dec 15

OLG Düsseldorf: Will drawn up prior to operation remains valid

In its judgment of August 19, 2015, the OLG Düsseldorf (Higher Regional Court of Düsseldorf) ruled that a will that was drawn up shortly before an operation remained valid even after the operation (Az.: I-3 Wx 191/14).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London - www.grprainer.com/en conclude: It may make sense to prepare a will before a risky operation as a way of making arrangements to implement one’s final wishes. In doing so, it is important to bear in mind that this kind of will might remain valid even after the operation. That was the decision of the Oberlandesgericht Düsseldorf. If it is to be changed again, it is necessary to take measures to that end.

In the case heard before the OLG Düsseldorf, a woman suffering from leukaemia had drafted a valid will prior to a necessary operation, in which she appointed her significant other as her sole heir. Her testamentary disposition stated, inter alia: “This is my will: Should something happen today in the course of this surgery and I do not wake up again, I leave all of my assets to my partner” [„Dies ist mein Testament: Sollte heute bei diesem Eingriff etwas passieren und ich nicht mehr aufwachen, vermache ich mein ganzes Vermögen meinem Lebensgefährten.“]. Although the operation went well, the woman died several months later.

The sister and the nephews of the deceased woman did not want to accept the will. They argued that the will should only have applied if something had happened to the testatrix during the operation. However, the OLG Düsseldorf considered the objections raised to be unfounded, stating that the wording “Should something happen today” [„Sollte heute ... etwas passieren ...“] was to be understood as meaning something like “in the event of my death” [„für den Fall meines Todes“], and did not constitute a real condition. The OLG’s 3rd Civil Division went on to say that other factors supported this conclusion. The Court stated that it could not be assumed that the testatrix only wanted to appoint her partner as her sole heir in the event that she did not survive the operation.

In order to ensure that a testamentary disposition can be implemented in accordance with the wishes of the testator, it ought to be formulated as precisely as possible so that there is no room for interpretation, which could in turn give rise to disputes among the heirs.

Lawyers who are versed in the field of succession law can advise you on all matters concerning estates, wills or contracts of inheritance.

For more informations: http://www.grprainer.com/en/legal-advice/law-of-succession/last-will-and-testament.html

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