A joint will drawn up by spouses, which is intended to set out the last wishes of both spouses, is only valid if, at the time the will was drawn up, both spouses were competent to make a will, that is to say, both parties were capable, by virtue of their capacity to understand and act, of exercising their will effectively.
The Celle Higher Regional Court set out this principle with Decision of 14 March 2024 (Ref. 6 W 106/23) In an exciting case, it’s clear that:
The spouses drew up a joint will in which they named each other as sole heirs. Shortly afterwards, an amendment was made to the joint will, whereby the surviving spouse was to become the exempt preliminary heir and their daughter the subsequent heir. Both the will in its original form and the amendment to the will were handwritten and signed by the wife, and were subsequently signed by the husband in his own hand to confirm his own wishes as well.
The wife had been suffering from dementia for two years before the wills were drawn up and was living in a care home.
Following her husband’s death in 2020, the wife, represented by their daughter, applied for a certificate of inheritance stating that, following the opening of the will, she had become the preliminary heir and her daughter the subsequent heir to her late husband’s estate.
In the subsequent proceedings before the probate court, the couple’s son argued that his parents were no longer of sound mind at the time the wills were drawn up.
The Magistrates’ Court relied solely on expert reports to establish evidence regarding the mother’s capacity to make a will, and concluded that she had lacked such capacity at the time the will was drawn up and the amendment made in 2018.
With regard to her husband, however, the Magistrates’ Court held that the joint will could be reinterpreted as a sole will.
The couple’s son lodged an appeal against this decision with the Higher Regional Court of Celle, seeking to have his mother’s application for a certificate of inheritance dismissed.
The Higher Regional Court of Celle considered the son’s appeal to be well-founded.
In its ruling, the court stated that the couple’s wills from 2018 were invalid, as a joint will cannot be validly drawn up if even one spouse lacks testamentary capacity. The lack of testamentary capacity on the part of one spouse is comparable to a situation in which only one spouse were to sign the joint will. In the view of the Higher Regional Court of Celle, both spouses must be of sound mind and must jointly participate in the drafting of the will, as the very purpose of the will is to set out the joint wishes of the spouses.
With regard to the reclassification of a joint will as an individual will, the Higher Regional Court of Celle makes it clear that such a reclassification is not possible if the spouse with testamentary capacity merely co-signed the joint will but did not draw it up themselves. In such cases, the statutory form is not met, as there has never been a will that satisfied the formal requirements – that is, one written by a person with testamentary capacity.
According to the Higher Regional Court of Celle, the husband’s capacity to make a will is therefore no longer relevant, as no valid joint will was drawn up.
In practice, this ruling means that, in cases where there is a possibility of incapacity to make a will, it may well be advisable for each spouse to set out their own dispositions in writing within the joint will. Only then could a conversion to a separate will be considered in the event of one spouse being incapable of making a will.
We would be happy to advise you on drafting a joint will. You can contact us by email at willkommen@gwgl-hamburg.de or by telephone on 040/300 39 86-0 We’re here for you and look forward to hearing from you or reading your messages.