Dispute over an inheritance: Legal capacity to make a will, certificate of inheritance proceedings, doctors’ duty of confidentiality
Once a dispute over an inheritance has arisen, every effort is made to assert one’s own rights. Where there are differing dispositions of property upon death (wills, inheritance contracts) or even just a single disposition that deviates from the statutory order of succession, a point of contention may also be the Testamentary capacity or the Incapacity to make a will of the testator. This is where the doctors who treated the testator during his or her lifetime come into the picture. It is not uncommon for doctors to invoke their duty of confidentiality.
In this regard, the Higher Regional Court of Cologne, in its order of 15 May 2018, Ref.: 2 Wx 202 / 18 It has been established that a doctor cannot, in any event, invoke his or her general right to refuse to give evidence if he or she is able to testify as to the testamentary capacity or lack thereof of a patient who has since died.
In a case concerning a certificate of inheritance, the Higher Regional Court of Cologne has ruled on the circumstances under which a doctor who treated the testator during his lifetime is obliged to give evidence in court regarding the testator’s capacity to make a will.
What is interesting about this decision – apart from the actual ruling itself – is the course of the proceedings. The application for a certificate of inheritance, originally filed by one of the parties, had been withdrawn following a settlement between the parties. As part of these proceedings for a certificate of inheritance, the deceased’s doctor was summoned as a witness to give evidence regarding the deceased’s capacity to make a will. He then invoked his right to refuse to give evidence in accordance with. Section 383(1)(6) of the Code of Civil Procedure (ZPO) invoked. However, the probate court ruled that the doctor could not, in fact, invoke this.
The doctor lodged an appeal against this decision, even though the contested order of the probate court had become moot as a result of the settlement reached between the parties. As the main proceedings had since been settled, the court only had to rule on the costs of the appeal proceedings.
In this context, the Higher Regional Court ruled that a doctor’s duty of confidentiality generally continues even after the death of the patient concerned. Following the patient’s death, neither the deceased’s heir nor, on their behalf, their relatives may release the doctor from their duty of confidentiality unless the patient had already waived this duty themselves during their lifetime. This is due to the highly personal nature of the patient’s interest in protection.
The decisive criterion is always the wishes of the deceased patient. If these wishes have not been expressed by the deceased patient either explicitly or implicitly, their presumed wishes must be ascertained.
In the present case, the Higher Regional Court concluded that clarifying the question of testamentary capacity would have been in the testator’s best interests and that, accordingly, the doctor had no right to refuse to give evidence. If the testator was of sound mind at the time the will was drawn up, it would be in accordance with the testator’s presumed wishes that the validity of the will be established – if necessary, with the assistance of the doctor named as a witness.
If, on the other hand, the testator was no longer of sound mind and, at the decisive moment, was no longer able to understand the content and implications of his will, then the will would no longer reflect the testator’s free will. The testator also has a corresponding interest in clarifying this matter. After all, the ultimate aim is to ensure that the testator’s wishes as expressed during their lifetime and the provisions set out in the will prior to their death are carried out.
This also applies where, as in this case, the will at issue was drawn up by a notary. After all, a notary cannot, ultimately, certify a person’s capacity to make a will. Rather, there are various reasons for consulting a notary, such as the desire for expert advice and to ensure that the will is drafted in a manner that is as legally sound as possible.
Consequently, the doctor was ordered to bear the costs of the appeal proceedings.
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