For documents to be recognized as a will, it needs to be possible to discern a serious intention to prepare a will. That was the verdict of the OLG Frankfurt (Higher Regional Court of Frankfurt) (Az.: 20 W 155/15).
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: If it is not possible to discern an intention to draft a will then the documents in question cannot be considered a will, not even if they fulfil the formal requirements for a proper handwritten will. That was the decision of the Oberlandesgericht Frankfurt (Az.: 20 W 155/15).
In the instant case, the testatrix was a widow and there was no knowledge of any relatives of hers who might possibly have become her legal heirs. While she had not drafted a will, she had prepared a declaration with the heading “Generalvollmacht” (general power of attorney) in which she granted a friend of hers the authority to represent her in all matters. This power of attorney was supposed to retain its validity even after the death of the testatrix.
Following the testatrix’s death, the court appointed someone to administer the estate. This was met with an appeal from the deceased’s friend. She argued with reference to the Generalvollmacht that she ought to assume all of the rights and responsibilities associated with the estate. In doing so, she also wanted to assume responsibility for designating the heirs. She took the view that the power of attorney was a disposition by will in her favour.
However, the OLG dismissed her appeal as inadmissible. It held that the documents that had been handwritten by the testatrix did not constitute a will, even though they satisfied the formal requirements for a will. The Court stated that in order for them to be recognized as a will, it needed to be possible to infer an intention to prepare a will from the power of attorney, i.e. a serious intention on the part of the testator to draft a will and make legally binding arrangements with respect to the estate. Moreover, it had to be possible to discern the intention to prepare a will by way of interpretation. The OLG went on to say that since there were no indications of this from the wording of the power of attorney, e.g. no references to “final will/wishes” or “inherit”, or of an intention to appoint heirs, the documents could not be deemed to constitute a will.
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