Lucky break: even a A will that can no longer be found may still be valid, provided that its form and content can be substantiated by evidence.
In its order of 19 July 2018, the Higher Regional Court of Cologne ruled (Ref.: 2 Wx 261/18, 2 Wx 266 – 270/18), that a lost will is not invalid merely because it cannot be found. Rather, the form and content of the will may be established by all admissible means of evidence. Furthermore, in the event of a missing will, it cannot automatically be assumed that the testator destroyed it and thereby revoked it.
This decision was based on the following facts:
The testator died in May 2016, widowed and leaving no children of his own; he had three half-siblings. His late wife had a biological daughter (hereinafter referred to as the stepdaughter). The testator’s parents had also predeceased him.
One of the three half-siblings applied to the probate court for a certificate of inheritance in accordance with the statutory order of succession, which would recognise him and the other half-siblings as heirs, each with an equal share of one-third. The stepdaughter did not initially object to the application, with the result that the certificate of inheritance was initially issued as requested.
Following legal advice, the stepdaughter then applied in August 2016 for a grant of probate designating her as the sole heir and for the revocation of the grant of probate issued to the half-siblings. She stated as grounds that, in February 2016, in the presence of three witnesses – namely two of the testator’s friends and her partner – the testator had drawn up a private will in which he had appointed her as sole heir. He had placed this will in a kitchen drawer. However, following the testator’s death, she found the envelope in question to be empty.
The half-siblings argued, citing witness evidence, that the testator had banned the stepdaughter’s partner – who was named as a witness – from the property, and that the relationship between the testator and the stepdaughter had been rather distant. Furthermore, the fact that the stepdaughter initially raised no objections to the certificate of inheritance applied for by the half-siblings also casts doubt on the alleged drawing up of the will.
By order of February 2018, the probate court withdrew the application for a certificate of inheritance that had been granted to the half-siblings in June 2016. The half-siblings’ appeals against this decision were unsuccessful.
The Higher Regional Court of Cologne, like the Probate Court, ruled that the testator had drawn up a valid private will in February 2016, in which he appointed his stepdaughter as sole heir. If a will is no longer in existence, it is not invalid merely because it cannot be found. Rather, the form and content of the will can be established using all admissible forms of evidence.
The fact that the stepdaughter did not contest the half-siblings’ initial application for a certificate of inheritance did not lead to any different legal assessment. The stepdaughter had plausibly explained that, as a layperson, she had not assumed that even a will which could not be found could be of legal significance. She had only learnt this during a consultation with her solicitor.
The Senate further clarified that, in the event that a will cannot be found, there is no presumption that it was destroyed by the testator and should therefore be regarded as revoked in accordance with section 2255 of the German Civil Code (BGB). This is contradicted, in particular, by the statements of the witnesses, who all agreed that the testator had spoken of the will shortly before his death. Furthermore, it would seem implausible that the testator should have destroyed the will whilst leaving the envelope in the kitchen drawer.
This case demonstrates once again how important it is to seek expert legal advice on matters relating to inheritance. Often, the legal assessment of a set of facts differs from what might appear to be the case. Depending on how a particular phrase is interpreted or what evidence is available, the outcome may sometimes be different.
Nevertheless, once again, it can only be recommended that appropriate measures be taken to spare the intended heirs such proceedings. Where possible, steps should be taken to ensure that one’s own handwritten will cannot suddenly go missing.
Do you have any questions about drawing up a legally valid will, or have you become a statutory or testamentary heir and are unsure what to do next? Please feel free to get in touch and arrange an appointment with us.