GRP Rainer LLP

Terminal Stage of Deadly Disease Does Not Justify a Testator's Inability to Make a Will

A will that a critically ill person draws up in a terminal stage is not as a matter of principle invalid. The testator’s inability to make a will can only be assumed if concrete evidence exists.


Cologne, NRW -- (SBWIRE) -- 08/21/2013 -- GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Bremen, Dusseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg, Stuttgart and London conclude: The Higher Regional Court of Bamberg (OLG) answered the question in its ruling (Az.: 6 W 20/12) whether a critically ill patient in a terminal stage can draw up a valid will. In the view of the judges, this is possible in principle and does not require obtaining an expert opinion. In the instant case, a testator suffering from cancer had drawn up a notarial will seven days before his death, according to which his partner became sole heiress. The testator’s sisters lodged an appeal against the issuance of the certificate of inheritance, as they considered the will to be invalid on account of the testator’s inability to make a will.

The Bamberg OLG, like the court of first instance, did not take this view. With regard to the testator’s ability to make a will, it is the disposing party’s knowledge of the execution of the drawing up of the will and the precise content that is decisive. The testator must be able to assess the effects of their disposition. The judges assumed that the testator was aware of the momentousness of his decisions. They saw no indications that would have spoken against his ability to make a will. This was also the reason why drawing on a psychiatric expert opinion was not necessary. Even the advanced stage of illness could not be gathered from such evidence.

The Local Court of Lichtenfels had already clarified (Az.: VI 276/09) that poor physical condition alone – the ill person was very weak and could no longer assimilate food on his own – would not influence the ability to make a will, even if the testator found himself by reason of his illness in a critical mental state. Instead, it is necessary for there to be tangible evidence, e.g. mental confusion or dementia tendencies.

Incidents of succession often lead to legal disputes between heirs and persons who have not been accounted for. For this reason, testators ought to obtain the help of a lawyer active in the field of the law of succession for drawing up a will. In this way, problems arising due to an invalid disposition by will can be circumvented.

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GRP Rainer LLP is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Essen, Frankfurt, Hamburg, Hannover, Munich, Stuttgart, Bremen, Nuremberg and London UK.

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