Increasing life expectancy entails a rising number of dementia-related disorders. As a result, the problem of a lack of testamentary capacity in inheritance cases is becoming more acute.
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London - www.grprainer.com/en conclude: In order to have the capacity to make a will, a person needs to have reached the age of majority and be capable of grasping the significance and scope of their declaration of intent. In principle, this means that it is possible for those suffering from dementia to still have the capacity to make a will. They have to be able to recognise the impact of their testamentary disposition, particularly with a view to the personal and economic circumstances. Most notably, they have to take their own decisions independent from the will of third parties.
When it comes to assessing the testator’s testamentary capacity, it is not the time of death but the point in time at which the will is drawn up that is decisive. Various psychological and mental diseases, including dementia-related disorders, can give rise to a lack of testamentary capacity. This does not mean, however, that a lack of testamentary capacity automatically emerges as a result of such a disorder. There are frequently ups and downs in the course of an illness, such that there are times when the sick individual is able to recover their power of judgment and testamentary capacity. In these grey areas it is often very difficult to determine whether the person in question does in fact have testamentary capacity. In these cases, inheritance disputes or challenges to the will are sometimes inevitable.
In addition to obtaining notarial certification, the testator can obviate these issues by consulting medical specialists who can confirm testamentary capacity in a medical certificate. While this does not preclude a challenge to the will, a lack of testamentary capacity needs to be proven. This can prove to be difficult in practice because case law generally proceeds on the assumption that a person has testamentary capacity.
It is possible for wills to be contested based on grounds other than a lack of testamentary capacity, as they need to satisfy several requirements in order to ensure that the testamentary disposition can be implemented in accordance with the wishes of the testator. These include, e.g. the mandatory incorporation of a heading, a handwritten signature as well as the location and date. Furthermore, the instructions in the will ought to be clearly formulated so that there is no room for interpretation which could result in a dispute among the heirs.
Lawyers who are competent in the field of succession law can advise on issues relating to wills.