17. Aug 16

Wills: Intention to prepare a will and testamentary capacity prerequisites

A valid will presupposes a clearly discernible intention to draw up a will and testamentary capacity. These elements are necessary if the testator’s testamentary dispositions are to be implemented.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: A will ought to fulfil certain formal requirements in order to ensure that the intention to prepare a will is clearly discernible and nip potential disputes among the heirs in the bud. While these are not always prescribed by law, they can nonetheless eliminate any unnecessary scope for interpretation at the outset. That is why a will should feature an unambiguous heading such as “my final will”. Moreover, it is vital that it also include the location, date and a signature.

It may also be a good idea to consider preparing the will on a suitable sheet of paper. If e.g. greaseproof paper or an untidy piece of notepaper is used, this could raise doubts as to whether there is in fact a serious intention to draw up a will. This piece of writing might be deemed to be merely a draft of a will. It is relatively easy to take the appropriate formal precautions. Another issue that is becoming increasingly relevant is testamentary capacity. Life expectancy has continuously risen in recent years. The negative side of this is that as one gets older, one also accumulates more illnesses, e.g. dementia-related disorders, and this can go hand in hand with doubts regarding testamentary capacity.

Essentially, anyone who is no longer a minor and is able to grasp the consequences and significance associated with their testamentary disposition has testamentary capacity. This includes people who, for instance, are suffering from dementia. They have to be able to understand the implications of their dispositions and make their own decisions. It is the date on which the will is drawn up and not the death of the testator that is decisive when it comes to assessing testamentary capacity. In doing so, it is important to bear in mind that there are often ups and downs over the course of an illness, and even seriously ill people experience moments in which they regain their power of judgment and testamentary capacity. For this reason, it is advisable for the testator to consult a specialist doctor who can attest to the former’s testamentary capacity in addition to seeking notarial certification where possible. If the heirs have doubts concerning the testator’s testamentary capacity, then they bear the burden of proof.

Lawyers who are experienced in the field of succession law can advise on all matters pertaining to wills or contracts of inheritance.

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