14. Jun 16

OLG Düsseldorf: Will effective despite removal from official custody

If a will is withdrawn from official custody it is deemed to have been revoked according to the law. Having said that, it is possible to contest the revocation under certain circumstances.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: In order to ensure that a will can reliably be found following the death of the testator, it is possible for it to be officially placed in the custody of a district court. The will can then be withdrawn from official custody at any time, at which point it is considered to have been revoked.

However, as the Oberlandesgericht Düsseldorf’s (OLG) [Higher Regional Court of Düsseldorf] ruling of December 23, 2015 demonstrates, it is also possible for a will to retain its effectiveness even after it has been withdrawn from official custody (Az.: I-3 Wx 285/14). The revocation can be contested if the testator was not aware of the legal consequences associated with removing the will from official custody.

In the instant case, the testatrix had designated her granddaughter as her sole heir in a notarized will. In another will, she also took her daughter into account. The notary placed the wills in official custody. The testatrix later withdrew the wills from official custody. The probate court informed her that the wills would thus be considered to have been revoked, with this being noted down in the wills.

The testatrix subsequently drafted various documents from which it could be discerned that she wanted to alter her will; having apparently used up a large share of her assets due to a long period of illness, her daughter in particular was to inherit less. No further mention was made of the granddaughter she appointed as her sole heir. Following the death of the testatrix, the granddaughter applied for a certificate of inheritance. The probate court dismissed the application, stating that the wills had been revoked.

The OLG reached a different ruling. It held that revocation based on the withdrawal of a will can be challenged provided the testator was not aware of the legal consequences, and that this could still be the case despite guidance from the probate court. The Court went on to say that the testatrix’s efforts to change her last will and testament were proof that she did not realise her wills had become invalid. The OLG therefore ruled that the granddaughter had become the sole heir.

Lawyers who are experienced in the field of succession law can advise on issues pertaining to wills and contracts of inheritance.

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