04. Mar 16

OLG Karlsruhe: High standards apply to the hearing of evidence if only a copy of a will is available

If only a copy of a will is available then high standards will be applied to the hearing of evidence before a certificate of inheritance can be granted.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: In its ruling of October 8, 2015, the Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) held that in cases where the original will can no longer be located, a particularly rigorous approach needs to be taken to clarifying whether the copy matches the missing original if the authority in question is to comply with its obligation to examine the facts of its own motion. To this end, it is generally necessary for a formal hearing of evidence with strict rules of proof to take place by hearing witnesses (11 Wx 78/14).

In the case in question, the testator had prepared a joint spousal will with his wife in which they mutually appointed each other as sole heirs. After the husband passed away, it was no longer possible to locate the will. However, since copies did exist, the wife presented one of these to the probate court and applied for a certificate of inheritance, which the probate court subsequently granted. In doing so, it based its decision on the wife’s affidavit. This stated that she had drawn up a joint will with the deceased and that the signature on the copy was his.

One of the sons lodged an appeal against this ruling. He argued that the signature attributed to his father could not be authentic and submitted another signature for comparison. He was also critical of the fact that the probate court had omitted to formally hear evidence. The OLG then obtained an expert opinion for the purposes of determining whether the deceased’s signature was authentic. Based on the expert opinion and after hearing the witnesses, it reached the conclusion that the signature was authentic and that the copy which had been submitted did match the original will. Having said that, a copy of a will does not satisfy the requirements for a formally valid handwritten will and therefore no hereditary title could be derived from the copy. The Court went on to say that the copy could only become effective like the original will if after hearing the evidence the exact contents of the disposition were apparent as well as the fact that the disposition had been drawn up in a formally valid manner.

When preparing a will, the testator should make sure that it can be located after his death. Furthermore, it ought to be drafted as clearly as possible so that no doubts are raised concerning the authenticity of the testamentary disposition. Lawyers who are competent in the field of succession law can advise on matters pertaining to succession.

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

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