03. Mar 16

OLG Schleswig: Will needs to be clearly dated

According to a ruling of the OLG Schleswig (Higher Regional Court of Schleswig) from July 16, 2015, if a will is not precisely dated then the testamentary disposition may be ineffective (Az.: 3 Wx 53/15).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: If the date is not precisely specified in a will and it is also not possible to determine with certainty at what exact point in time the testator penned his “final will”, this can result in the will being invalid. This comes from a ruling of the Oberlandesgericht Schleswig.

In the instant case, the testator’s wife and daughter had passed away before him in 2004. He filed a notarised will with the competent district court in 2005 and another one in 2007. The testator then personally removed these wills from the records. In 2008, he drew up another notarised will and appointed one of his nephews as his sole heir. Around a year later, he granted a niece of his a notarised healthcare proxy.

She then presented a handwritten note with the heading “Mein Heutige Testament” (my will as of today) following the death of the testator in 2013, in which the latter supposedly bequeathed her “alle seine ersparten Gelder” (all of his savings). However, it was unclear when the testator had prepared this will, as it was only possible to decipher the beginning of the date: “Donnerstag, 09.” (Thursday, 09.). The relevant month and year could not be clearly ascribed to the will. The OLG Schleswig therefore held that this document could not be considered a valid will.

The Court stated that the will was invalid because the relevant date could not be determined with certainty. Moreover, it was not possible to determine with certainty whether this document had been drawn up after the notarised will from 2008. It went on to say that it was at least a possibility that it had been drafted beforehand. While an incorrect date or a failure to specify the date in the first place does not automatically result in the will becoming invalid, it must then be possible to ascertain the exact date from the rest of the will’s contents. According to the Court, that was not the case here.

When it comes to wills, one needs to be mindful of the relevant statutory regulations, such as those pertaining to the compulsory portion, in addition to formal requirements, e.g. concerning legibility, the date and signatures. Lawyers who are versed in the field of succession law can advise on preparing an effective will.

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

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