The Berlin Court of Appeal recently ruled that the can also determine the order of succession in accordance with a will, of which only a copy remains (Berlin Regional Court, order of 3 August 2018, ref.: 6 W 52/18).
The parties to the proceedings for a certificate of inheritance were the applicant, as one of the deceased’s sons, and the respondent, as the deceased’s stepdaughter. The deceased was married three times in total. He had one son with each of his first two wives. His third wife, who had already passed away by the time of his death, brought a daughter into the marriage, who is the current respondent.
Following the testator’s death, one of the sons applied for a certificate of inheritance based on the order of succession at law, which was to designate the testator’s two sons as heirs, each entitled to ½ of the estate.
The testator’s stepdaughter contested this application for a certificate of inheritance by submitting to the probate court a copy of a handwritten will drawn up by the testator in 2011, according to which she was the sole heir. The original will could no longer be found; she had made a copy of it at the time the will was drawn up for evidential purposes. Furthermore, shortly before his death, the testator had confirmed to his stepdaughter and her husband that she was to be the sole heir.
In order to determine whether the will, of which only a copy was available, had in fact been drawn up by the testator, the probate court appointed a handwriting expert. The expert confirmed that the testator was indeed the author of the will, of which only a copy was available. Consequently, the probate court rejected the son’s application for a certificate of inheritance.
The Kammergericht dismissed the son’s appeal against this decision as unfounded. It held that the order of succession was not determined by law, but rather by the provisions set out only in Copy of the present will According to this, the stepdaughter is the sole heir. The fact that the original will can no longer be found is irrelevant. It is not decisive for the validity of a will if „the will has been destroyed, lost or is otherwise untraceable without the testator’s knowledge or involvement“. The execution and content of a will may be substantiated by other evidence.
Furthermore, despite the burden of proof resting with him, the son had failed to prove that the testator had destroyed the will with the intention of revoking it. The fact that the will could no longer be found did not allow one to conclude that the testator had intended to revoke it.
Consequently, the son was not granted the certificate of inheritance he had applied for.
This ruling by the Berlin Court of Appeal clearly shows that it can sometimes be worth fighting for what you believe in, even if things look difficult at first. It is not impossible to assert your rights when the will is available only as a copy, but it is not easy either, and, above all, it does not often succeed.
In this respect, it is important, when drawing up a will, not only to clear wording to select and click on the Formal requirements must be observed, but also to ensure that this will is found by the beneficiaries / lawful heirs. Should a race between potential heirs ensue, every effort should be made from the outset to prevent the will from falling into the wrong hands or disappearing „by mistake“. This is, of course, not to be assumed in the present case. However, it does, unfortunately, happen in practice. Therefore, wherever possible, the Deposit with the Local Court is to be preferred to any other form. A private-script testament may also be placed in official safekeeping.
If you are considering sorting out your legal affairs and would like to draw up a will, we would be happy to assist you. We will work with you to assess your personal family and financial circumstances and discuss with you whether and how your wishes can be carried out. We will then help you to use the correct wording to set out these wishes in a will in a legally valid manner.
Naturally, we are also here to support you when it comes to asserting your rights in a probate case.