In principle, it is possible to draw up a valid will on a piece of notepaper. But be careful: the formal requirements that generally apply to wills must be met.
The Higher Regional Court of Braunschweig ruled in its order of 20 March 2019 (Ref.: 1 W 42/17), that a written on a scrap of paper, a handwritten will is invalid. This decision is based on the following facts:
In 2001, the testator drew up a joint will together with her husband, in which they appointed each other as sole heirs of the first to die; this so-called ‘spousal will’ did not provide for any residual heirs.
In 2014, the testator granted the applicant a notarised enduring power of attorney. In the same year, the applicant’s legal representative drew up a draft will for the testator, which was intended to name the applicant as sole heir. However, before this could be notarised, the testator passed away.
The testator also wrote the following on a note measuring just a few centimetres:
„If someone can be found for me (first name and surname), born on (date of birth), who will look after me and not put me in a care home, that person will get my house and everything I own.“
The note was signed with the testator’s first name and surname. The note did not specify a place or date.
As the applicant had cared for the testator during her lifetime, she applied, following the testator’s death, for a certificate of inheritance designating her as the sole heir. The application was rejected on the grounds that neither the draft will nor the note constituted a valid will. The Higher Regional Court of Braunschweig concurred with this view and dismissed the applicant’s appeal.
As the draft will had not been signed by either the testator or the notary, it did not constitute a valid will.
The same applies, in effect, to the note – and this is for several reasons.
(a) Firstly, the note does not specify a date. However, this was relevant in this case, as the testator had already drawn up a joint will with her husband back in 2001. The judges were unable to determine with certainty which of the two wills (whether the joint will or the note) had been drawn up first.
Where another will exists, the date of its execution is of considerable importance, as the will drawn up later revokes any previous testamentary documents. If a holographic will contains no information regarding the date of its execution and this gives rise to doubts as to its validity, the will is to be regarded as valid only if the necessary findings regarding the date of its execution can be established by other means. However, this was not possible in the present case.
(b) Secondly, there remain doubts as to whether the testator actually acted with the intention of making a will. The testator must have had the intention of seriously drawing up a legally binding will. Where doubts exist, Section 2084 of the German Civil Code (BGB) – which provides that, in case of doubt, the interpretation that allows the disposition to be valid is to be preferred – may not be invoked. Since, in the present case, the testator had already drawn up a valid joint will with her spouse, it could be assumed that she was aware of the formal requirements for drawing up a valid will (in this case, handwritten, signed and, where applicable, stating the place and date).
Furthermore, the wording was also unfortunate: the fact that the person who „looks out for me and doesn’t put me in a care home“ the deceased’s house „get“ ...could also be interpreted as meaning that the testator held out the prospect of transferring her house whilst she was still alive. The word „inherit“ or any indication that the „receipt“ was to take place only after the testator’s death was not included in the text.
The fact that the testator had commissioned a notary to draw up her will also suggested that the note was not intended to be a will. It could also have been a draft intended as a „reminder“.
(c) Last but not least, any testamentary disposition contained in the will would also be void on the grounds of vagueness. Whilst the beneficiary need not be named specifically, it must be possible to identify them with certainty, so as to rule out any arbitrary decision by third parties. This follows from Section 2065(2) of the German Civil Code (BGB), according to which the testator may not leave the determination of the person who is to receive a bequest (…) to another person. In the present case, it remained unclear what the testator meant by the term „be careful“ she said. This could be understood to mean, for example, „looking after“, „helping“, „supervising“ or similar. It cannot be determined whether the testator envisaged someone checking on her from time to time or whether she was to be cared for at home on a permanent basis. Nor is it clear for how long this „looking after“ was to take place.
In light of all this, the wording of this note would have meant that, in the present case, the probate court would have had to determine the heirs on the basis of its own criteria. However, the probate court is prohibited from doing so. The consequence in this case was that the deceased was succeeded by her statutory heirs and not by the applicant.
This case demonstrates once again that, with hindsight, significant disputes can arise if a will contains unclear, amateurish wording.
This can be avoided if you draw up your will with the help of a solicitor, who will discuss your wishes with you and take your preferences into account when drafting the will.
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