Crossings-out in a will give rise to a presumption that the testator intended to revoke the will
In its ruling of 13 October 2023, the Munich Higher Regional Court (Ref.: 33 Wx 73/23 e) ruled that, where a holographic will is found in the testator’s home and it can be ruled out that third parties had unrestricted access to it, it must be assumed that any alterations to the document were made by the testator himself.
Provided there are no other circumstances to consider, it can be assumed that extensive crossings-out extending across the entire document were made with the intention of revoking it.
The decision is based on the following facts:
The deceased, who was divorced and had no children, left a handwritten will in which she named her partner as her sole heir. She disinherited her two brothers. Several crossings-out were found across the three pages of the will, covering the entire text. In addition, an undated and unsigned typewritten will was found, with essentially the same content as the handwritten will.
The partner applied for a certificate of inheritance designating him as the sole heir. The probate court announced that it would issue the relevant certificate of inheritance, stating that the will had not been revoked by the crossings-out. Doubts remained as to whether the crossings-out had been made by the testator.
The testator’s brothers lodged an appeal. The Probate Court did not rule on this and referred the case to the Higher Regional Court of Munich for a decision. The Civil Division of the Munich Higher Regional Court quashed the order and referred the case back to the probate court for a fresh hearing. The probate court again failed to resolve the matter and referred the case back to the Munich Higher Regional Court.
The Senate did not share the Probate Court’s view that there was no evidence of the testator’s intention to revoke the will. He assumes that, that the the testator destroyed the will with the intention of revoking it.
The sole point of dispute between the parties was whether the will had been crossed out by the testator with the intention of revoking it, or whether the crossings-out had been made by a third party, or indeed by the testator herself but without the intention of revoking it. The burden of proving the validity of a will rests with the person seeking to derive rights from it. The burden of proof regarding an act of revocation by the testator The burden of proof regarding the intention to withdraw lies with the person who, who invokes it. The will remained in the testator’s possession until her death. Following the hearing of evidence, the Senate concluded that it could be virtually ruled out that any third parties had had access to the will. It was also ruled out that any third parties had made alterations to the will after her death. The partner, who found the will, had no interest in destroying it. The brothers only had access to the flat after the funeral to look for old family photographs. The court was satisfied that the testator had made the deletions herself. In accordance with Section 2255, second sentence, of the German Civil Code (BGB) it is assumed that the the testator had made the deletions with the intention of revoking the will. There was no evidence to support the assumption that the testator had intended the crossed-out will to remain in force until she had drawn up a new will.
The partner’s application for a certificate of inheritance was therefore to be rejected.
To prevent such disputes – which usually drag on for many years – from arising for the next of kin, it is advisable to seek advice on all matters relating to the drafting or revocation of wills.
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