17. May 16

OLG Hamm: Discernible intention to prepare a will necessary for will to be effective

In order for a will to be effective, it must be possible to discern a serious intention to draft a will. That was the verdict of the OLG Hamm (Higher Regional Court of Hamm) in its ruling of November 27, 2015 (Az.: 10 W 153/15).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Anyone who prepares their testamentary disposition in a will should make sure that it is possible to detect a serious intention to draft a will. Doubts as to whether there is in fact a serious intention to prepare a will may result from the fact that a putative will was not drafted on a typical desk pad but instead on a cut-out piece of paper or a folded sheet of parchment paper. Moreover, the content of a will and its presentation as well as its being kept in an unusual place for a will can also give rise to doubt. That was the finding of the Oberlandesgericht Hamm.

In the case in question, a widowed testatrix had a daughter and four grandchildren from her deceased son. After the testatrix’s death, the daughter filed for a certificate of inheritance based on the rules of intestate succession. Assuming that they were wills attributable to the testatrix, the grandchildren presented two documents from 1986 which purported to designate their father as heir. Thus, they applied for a certificate of inheritance identifying themselves as the heirs.

However, the documents that were submitted raised doubts as to whether they were in fact wills. One of the documents was a relatively small cut-out slip of paper featuring the heading “Tesemt” (non-existent word resembling the German word for will: “Testament”) as well as other ambiguous wording and barely legible letters. The second document, a sheet of parchment paper that had been folded multiple times, included the same words in a slightly altered form. The documents were found in a disorderly state in a casket along with other documentation.

The OLG Hamm ruled that all of these factors raised doubts as to whether the testatrix did in fact seriously intend to make a will, and it therefore rejected the grandchildren’s application for a certificate of inheritance. It went on to say that based on the content and presentation of the documents, it was doubtful whether they constituted a will. The Court held that this could not be established with sufficient certainty.

Lawyers who are versed in the field of succession law can advise on drafting a will or contract of inheritance so as to ensure that no doubts arise concerning the authenticity of a testamentary disposition.

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