15. Nov 16

OLG München on validity of a nuncupative will

When faced with the prospect of imminent death, the testator can prepare a nuncupative will provided certain conditions are met. For this to happen, he needs to still be capable of making a will and three witnesses have to be present.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: A testator can draft a nuncupative will in the presence of three witnesses if he is no longer able to prepare a handwritten will and the imminent prospect of death is such that neither a notary nor mayor would arrive on time.

Nuncupative wills can sometimes give rise to disputes among heirs, e.g. because of doubts regarding the testator’s testamentary capacity. The Oberlandesgericht (OLG) München [Higher Regional Court of Munich] held in its ruling of May 12, 2015 that a nuncupative will is validly drafted even if the only statement signed and approved by the testator constitutes a single document together with the statement drawn up and signed by a witness to the will on a separate sheet of paper (31 Wx 81/15).

In the instant case, a single and childless testator had drawn up a handwritten will in which he had designated the plaintiff as his sole heir. After becoming seriously ill, the testator ended up in hospital where he drafted a nuncupative will and appointed a different heir. The transcript was prepared by one witness, read aloud by the same person in the presence of two other witnesses and the heir who was to benefit from this, and subsequently approved and signed by the testator. The witnesses validated the nuncupative will on a separate sheet of paper.

The original sole heir doubted the validity of the will, claiming that formal requirements had not been adhered to, no attempt had been made to send for a notary and the testator had no longer been capable of making a will. The OLG München did not accept her line of reasoning. It concluded after hearing the evidence that a lack of testamentary capacity on the part of the testator had not been demonstrated. It was said that the witnesses were not aware of the testator’s imminent death until after 6pm, i.e. after office hours, with the result that it was no longer possible to inform a notary. The Court went on to state that while the nuncupative will did not include statements concerning the process of drafting, the imminent prospect of death, testamentary capacity or the witnesses present, these violations of formalities were not serious enough to render the will invalid.

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

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