According to German law, this disposition is also referred to as a last will ( BGB ). It is a unilateral, formal declaration of intent of the testator ( testator ) about his property, which can be revoked at any time and which takes effect in the event of his death (inheritance). Another form of disposal upon death is the inheritance contract (§ , ff. BGB).
If there is no will, the legal succession comes into force.
Differentiation from other dispositions
The legal rules on the content, establishment, revocation , interpretation and contestation of wills are part of inheritance law . The so-called living will (also advance directive ) on the other hand is not the fate of the regulated assets after death, but the extent of the medical and nursing care in the event that the patient no longer form later a will or can express. The formal requirements of the will do not apply to living wills; according to German law, the written form is sufficient ( BGB). The same applies to the last will regarding the funeral .
Reasons for a will
In the event of the death of a person who has not made an effective will (or has concluded a contract of inheritance ), legal succession occurs . This succession does not necessarily correspond to the ideas of the testator and can lead to disputes among the relatives , which the testator can avoid through a clear testamentary regulation. For example, the legal succession regulates that in a childless marriage the parents become heirs alongside the surviving spouse and form a community of heirs with him . Often, the legal regulation that the children inherit alongside the surviving spouse and thus also form a community of heirs does not match the testator's last will. If you want to avoid this, you have to regulate the succession through a will (or an inheritance contract).
Legal situation in Germany
Contents of the will
The following inheritance-related dispositions can be made in a will.
- Disinheritance ( abdicatio )
- Suspension of a Legacy
- Pitch arrangement
- Ordering the execution of a will by an executor
- Withdrawal and restriction of compulsory portion
In addition, as a non-inheritance disposition in the form of a will, the appointment of a guardian for underage children who have been left behind in accordance with German Civil Code (BGB), as well as the determination of religious child rearing .
For Germans who are abroad, the legal succession in the event of death is judged in German courts, also for assets that are located abroad, according to German inheritance law , unless the law of the other state applies to the assets within their sphere of influence has created special regulations that it also applies to Germans ( EGBGB ). In such cases , a division of the estate takes place in the interests of international consistency in the decision and the inability of the German courts to force enforcement in foreign jurisdiction .
In the case of such a division of the estate, the legal succession judges itself upon death for the property located in the country concerned according to foreign law; Incidentally, German law applies. A will drawn up abroad can be certified by a German consul (it corresponds to a notarial will).
In the case of foreigners , their home law is also applied in Germany , unless their home law declares German law to be decisive (reference back). According to German international private law , foreigners who have appointed an heir for property located in Germany can also choose German inheritance law.
The ability to testify describes the ability to draw up, amend or revoke a will. It is a sub-case of the legal capacity, but experiences an independent regulation inBGB. According to this, anyone who has reached the age of 16 (paragraph 1) and is not in a position to see the meaning of a declaration of intent given by him and to act on this insight is not able to testify because of a pathological disorder of mental activity, because of mental weakness or because of a disturbance of consciousness ( Paragraph 4).
According to Paragraph 2, a minor does not require the consent of his legal representative to draw up a will . For this constellation, only special formal requirements are provided: According to (1) BGB, it is limited to the fact that it can only draw up a public will by declaring it to the notary or by handing over an open document. He is thus prevented from drawing up an effective handwritten will - expressly clarified in Paragraph 4 of the German Civil Code (BGB) or a will by handing over a sealed document to the notary. In this way, the cooperation of a knowledgeable counselor is to be ensured in order to protect the minor from ill-considered or hasty wills.
A mental limitation according to incapacity . The ability to testify is assumed to be the normal case. Their non-existence is the exception and must therefore be proven by anyone who invokes the deceased's business or testamentary incapacity. If there are any doubts, the probate court assumes that the will can be made a will.Abs. 4 BGB removes the testability if the testator no longer recognizes the scope of his decisions and can form and express his will free of the influence of third parties. Inability to testify is a special form of legal
The probate court ( FamFG ) must examine ex officio when issuing the certificate of inheritance ( FamFG; BGB) if there are specific doubts about the testability. The fact that a legal guardian was appointed does not in itself prove the inability to testify. In the event of such doubts, the probate court must first clarify the alleged conspicuous behavior of the testator (e.g. the extent of the cerebral sclerosis or the confusion including possible clear intervals ) and then obtain the expert opinion of a psychiatrist . However, the will is not invalid due to a mental illness if the will is not related to the illness and is not influenced by it. The expert assessment of the inability to testify is extremely demanding, especially if the assessment is made posthumously , i.e. H. to be taken after the death of the testator. Conversely, however, it is also not sufficient for the capacity to testify if it cannot be ruled out that the testator could have had bright moments. Here, the person who invokes the effectiveness of the will must prove that such a bright moment actually existed at the time the will was drawn up.
On the other hand, an expert opinion to determine the inability to make a will during one's lifetime will be difficult to enforce. In a decision by the OLG Frankfurt am Main, the testator's interest in being spared from litigation was rated higher than the interest of any potential heir in obtaining clarity about his legal succession at an early stage. In addition, the testator cannot be required to give an account of the fate of his estate during his lifetime.
The reservation of consent of a legal guardian may not extend to dispositions due to death in accordance with (2) BGB. Wolfgang Grunsky takes the view that Paragraphs 1 and 4 BGB are unconstitutional.
Form of making a will
Different forms are available for drawing up a will . According to the BGB, the testator can testify in two ordinary forms: in the form of a public notarial will or a private handwritten will. There are also extraordinary forms of wills. The strictness of the form has been considerably relaxed since the Will Act of July 31, 1938.
It is possible to draw up a will with a completely handwritten and signed declaration. However, this is not possible for a minor ( Paragraph 4 BGB). The time and place at which the will was drawn up should be given. The declaration must be written entirely by the testator himself so that his identity can be verified using the handwriting . Simply signing a typewritten document is not enough. However, the place and time of construction may be typed. A will that is typed or printed out by computer can only be considered valid if it is handed over to a notary in an open or closed envelope. But then it is a form of the public will. It can also serve as a literally identical reading aid for the actual, handwritten testament to make the handwriting easier to decipher.
The way in which the will is drawn up does not matter. A will can be written in the “classic form” (titled as such, etc.) or in the form of a letter. It is possible to write the handwritten testament in any foreign language, whereby it is necessary that this language is understood by a third person. Even a will written in shorthand is possible as long as there is no doubt as to the authorship of the testator. The requirement for a signature is that it can be found at the end of the certificate. The signature has a closing function and is intended to show the reader that the will ends at this point. It is not necessary to sign your first and last name, but it is strongly recommended. However, it is sufficient to sign with a nickname or nickname such as "Dein Papa" or "Dein Schnuckel" - but not the abbreviation "D. O. ”(“ The above ”) - as long as the identity of the signatory is secured. For the legal regulation see BGB.
The public will ( notary or submits a document (open or closed) stating that it contains his last will. Since the decision of the Federal Constitutional Court of 19 January 1999, the orality of the declaration is to writing no longer required by the notary. In addition to spoken language , you can also use a sign or sign language.BGB) is drawn up in such a way that the testator declares his last will to the
If the testator decides upon death by handing over a document to the notary, the will need not be written by him. It is possible to type it in or use a PC. It is controversial whether the testator needs to know the content of the handover or whether the possibility of knowing is sufficient. The notary, on the other hand, does not need to be aware of the content of the script (e.g. in the case of closed scripts or open scripts in a foreign language).
According to Notarization Act (BeurkG), the notary is obliged to advise the testator comprehensively on the drafting of the will so that his / her last will is clearly and legally correct. The other only applies if the testator hands over a locked document to the notary and thus dispenses with advice from the notary. In practice, however, this rarely occurs.
In order to minimize the risk of the ineffectiveness of the public will, the notary is required according to witnesses can be called in for the certification of the will in accordance with BeurkG .BeurkG to determine in the deed whether the testator is capable of making a testimony and is legally competent, BeurkG. However, due to the lack of appropriate training, he is often hardly able to make expert statements in this regard. In cases of doubt, a specialist in psychiatry can be called in. At the request of the testator, up to two
The public will triggers costs according to the GNotKG . The amount of the notary fees depends on the assets of the testator at the time of notarization. On the other hand, a public will can make a certificate of inheritance superfluous, which is usually more expensive than a notarial will. Banks also regularly do not require a certificate of inheritance if a notarial will is presented. According to section 5 AGB-Banken as section 5 AGB-Sparkassen , banks may make debt-discharging payments to the heirs named in the public will. The Federal Court ruled on 7 June 2005 that a bank because of the requirement for a certificate of inheritance liable for damages may do if an account opened public testament is and the terms and conditions of the bank mention this as a substitute for a certificate of inheritance. However, the BGH has only decided that this is definitely the case with public wills, and not ruled out that it is different with private wills.
A notarial will must be placed in special official custody by the notary ((1) sentence 4 BeurkG, FamFG).
Those who are ignorant or incapable of writing and the mute
People who are ignorant or incapable of writing can of course not draw up a will by hand. You have to certify publicly to be written down by a notary or by handing over a document to the notary. Before the decision of the Federal Constitutional Court, a mute could only testify by handing over a written will in addition to the handwritten will if he had chosen the form of the public will ( (3) BGB old version). However, it was not possible for those who were ignorant or incapable of writing to be dumb (dumb illiterates or persons with double disabilities) who were not able to hand over a document to the notary, because the testator himself had the declaration that the writing contained his last will in the written record or attached to the written record Sheet had to write (§ 31 BeurkG old version). Those who were ignorant or incapable of writing were consequently excluded from an injunction upon death. This regulation violated 14.1 sentence 1 GG and the principle of equality of GG. Now the declaration that the handing over handwriting contains the last will can be made form-free (also through sign language by means of a sign language interpreter).
In situations in which the notary cannot be reached in time, German law recognizes so-called emergency wills.
- Mayor's will ( BGB)
- Three-witness will ( BGB)
- Sea will ( BGB)
These regulations, which date back to the stagecoach era, have hardly any practical significance. It should be noted that emergency wills become ineffective three months after they have been drawn up if the testator is still alive and has in the meantime been able to draw up a proper will ( BGB).
The spouse's or joint will
In principle, a will can only be drawn up by the testator himself. Spouses and life partners in a same-sex partnership can draw up a joint will (§ ff. BGB). This right does not apply to fiancées or those living in unmarried couples . When drawing up a joint handwritten will, German law provides for simplifications in terms of the form. It is sufficient if one spouse (life partner) writes the will by hand and both finally sign it.
A special feature of the joint will is that after the death of the first deceased, mutual dispositions from the will become binding. The survivor can then no longer revoke such mutually related, binding dispositions. With regard to reciprocity, there are dispositions that one spouse ( life partner ) only makes because the other has also made a certain decision. In practice, this becomes particularly clear in the frequently occurring rule of the so-called Berlin Testament . If the spouses acted mutually as heirs on the death of the first deceased and decreed that the inheritance should be given to the children together on the death of the second deceased , the survivor can no longer revoke his disposition in favor of the children after the death of the first deceased.
The surviving spouse, on the other hand, remains free in the case of dispositions between the living. In principle, he can do whatever he wants with the inherited wealth during his lifetime. This results in the problem of the impairing donation , which is common in practice (example: the surviving spouse gives away significant parts of his assets to third parties). Such impairing gifts are effective, but after the death of the testator, the final heir can demand the surrender of the gift from the recipient if the gift was made with the intention of impairing the final heir. The Federal Court of Justice defines this intention to impair the donation as meaning that the testator must not have had a lifetime self-interest in the donation.
A possible problem is the formulation of the "simultaneous" death in the spouse's wills when actually the "common" death, for example as a result of the consequences of the same accident, is meant. A formulation such as: “Should we die together or perish in common danger, then the following persons should inherit” should be chosen. According to a decision by the Zweibrücken Higher Regional Court, there is still a case of “perishing in common danger” if one partner died six days after the other after a traffic accident.
For a long time it was controversial whether so-called lover's wills , also known as mistress wills, are immoral according to BGB . In the meantime, the view has gained acceptance that a will is only considered immoral if the beloved was appointed sole heir solely because of her sexual devotion ( giving for devotion ). According to current prevailing opinion, the relevant point in time is the point in time of the death of the testator and thus no longer, as previously generally held, the writing of the will. Furthermore, it was long disputed whether the will of the handicapped was also immoral. However, the BGH repeatedly denied this in four major decisions, so that today we can assume morality.
Violation of the Home Act
Testamentary dispositions can be void due to a violation of a legal prohibition; Therefore, the prohibition of donations to homes (Section 14 of the Home Act) also applies to last wills. A violation of the aforementioned provision in accordance with Section 134 of the German Civil Code (BGB) results in nullity , although the prohibition is only directed against the home carrier.
The appointment of the facility provider as a subsequent heir does not constitute a violation of Section 14 (1) of the Home Act if the staff of the facility provider only learn about the will after the death of the home resident.
Securing the will
One problem is that a will is lost or cannot be found. Public wills are always placed in the official custody of the probate court by the notary . Handwritten wills can also be placed in special official custody by the testator at the probate court ( BGB). In the case of wills that are not officially kept, anyone who finds one after the death of the testator or keeps it for him has to hand it over to the probate court ( BGB).
For the safekeeping of a will by a probate court there are costs according to No. 12100 of the list of costs for the GNotKG in the amount of EUR 75. This means that all notifications according to FamFG are satisfied.
Introduction of the nationwide Central Register of Wills
The notification system in inheritance matters was fundamentally reformed with the introduction of the Central Register of Wills on January 1, 2012. The register is kept by the Federal Chamber of Notaries in Berlin.
In the will register it is noted where the testator's deed is kept. With every death, the Federal Chamber of Notaries checks the register for registered wills, inheritance contracts and other notarial succession-relevant documents. If custody information is available, both the competent probate court and the custodian itself will be informed electronically immediately in the event of death. For the testator, this means the certainty that his last will will be found and taken into account.
Information on the person of the testator, the place of custody and the deed is recorded in the register. However, the content of the death disposition is not included in the register. This data economy and the use of specially secured systems guarantee the necessary confidentiality and data protection. The register can only be consulted by notaries and courts in their official capacity.
The introduction of the will register serves to modernize the information system in inheritance matters, which used to be time-consuming and error-prone. So far, information about succession-related documents has also been noted, but in paper form on so-called "yellow index cards" at around 5,000 birth registry offices throughout Germany and the main index for wills of the Schöneberg District Court in Berlin. Information is currently exchanged between the registry offices, the depositary and the probate court by post. The inheritance proceedings with the will register are carried out faster, more efficiently and more securely through electronic communication channels. At the same time, Germany thus achieves the European standard.
Preliminary deeds which, for example, restrict the freedom of testament are recognized by the register. In this way it can be avoided that an earlier joint will that has long been forgotten is overlooked.
Despite the extensive modernization, the costs for the individual are extremely moderate - even in a European comparison. The one-time registration fee is EUR 15 or EUR 18, depending on the type of billing. This includes all registration costs, including any corrections, subsequent registrations and all notifications in the event of death.
Existing custody messages in the more than 5,000 wills registers of the registry offices and the main file for wills at the Schöneberg District Court in Berlin have been electronized and placed in the wills register of the Federal Chamber of Notaries. This process took several years and was completed in November 2016.
Revocation of the will
The testator can revoke his will at any time without any reason, regardless of the form in which the will was drawn up. The testator can revoke an earlier will by either expressly declaring the revocation in a new will (i.e. a will or an inheritance contract ) or by making new provisions that conflict with the old one (implied revocation). Because of this priority of the younger one over the older one, the indication of the date of the will is of particular importance in the will. It should be noted, however, that the older testament is only canceled by a subsequent testament to the extent that the older testament is in conflict with the later testament. It is therefore quite conceivable that several wills - provided they do not contradict one another - are effective at the same time. A will can also be revoked by changing the will itself (and then signing it again, stating the place and time, if possible) or by completely destroying it (Section 2255 BGB). The change or destruction must be carried out by the testator acting with the intention of changing or destroying. The effectiveness of the will remains unaffected if the will is destroyed or lost without the will or involvement of the testator.
A public will is also revoked when the testator withdraws it from official custody. This also requires the ability to testify in the sense of § 229 BGB.
Revocation of the joint will
The mutually related provisions in a joint will can only be revoked at any time up to the death of the first deceased. After that they become binding. Until then, the mutual provisions can only be revoked informally by both spouses together. If they are only revoked by one side, the revocation must be notarized.
Revocation of the withdrawal
In principle, it is possible to revoke the revocation of a will yourself, with the result that the revoked will is revived in its effectiveness. However, it should be noted that this is only possible for revoked personal wills. The revocation of a will through destruction is irrevocable (for example, putting the torn wills together with adhesive strips).
It is also - legally - not possible to revoke the revocation of a public (= notarial) will. Since the public will is drawn up by being placed in the special official custody of the probate court, the return of a will that has been removed from official custody is equivalent to a new creation and therefore does not constitute a revocation of the revocation.
Interpretation of the will
The interpretation of the will is directed - unlike other declarations of intent not so not for the objective receiver horizon, according to how an objective receiver, the statement after the - prevailing practice could understand. Only the real will of the testator is decisive, as it was at least hinted at in the will. This difference is based on the consideration that there is no recipient of the declaration in a will and therefore no business partner who would have to be protected from the declaring person meaning something other than what he is objectively expressing. regulates the "interpretation in favor of the effectiveness" of the will: If the content of a testamentary disposition allows for different interpretations, in case of doubt the interpretation that is successful is to be preferred.
Contesting the will
The challenge of the will is based on special inheritance regulations. It is excluded during the testator's lifetime because - unlike other legal transactions - he does not need a right of avoidance, as he can freely amend or revoke the will. The reasons for contestation are initially an error of explanation and error of content as well as threats and deception . In contrast to other legal transactions, however, an error of motive also entitles the holder to contest. As a particular error of motivation, the case is expressly regulated in the German Civil Code that the testator has passed on a person entitled to a compulsory portion of whom he knew nothing at the time the will was drawn up or which arose after it was drawn up. With an effective contestation of the final heir appointment of the children in the joint will, however, all testamentary dispositions of death, which are mutually related to this, also lapse. If the final heir of the children is in relation to the inheritance of the spouse by the other spouse in the ratio of reciprocity, if the challenge becomes effective, the inheritance of the challenging spouse by his deceased spouse and thus his sole heir does not apply. If there is no other will of the spouses, legal succession occurs (retrospectively) on the date of death, which means that the spouse and their children are a community of heirs.
Inheritance contract instead of will
All regulations that can be made in a will are also possible in an inheritance contract . This must always be notarized by a notary and is always kept officially (by a notary or probate court). In the case of an inheritance contract, there is occasionally a consideration from the future heir during the life of the testator, for example work on the farm or farm (so-called anticipated succession).
Legal situation in Switzerland
In Switzerland, the will is known as the will “last will” (LV) and is regulated in the third part of the civil code (ZGB). In the LV, the testator can freely dispose of his estate subject to the compulsory portions of his legal heirs.
Right to create a course (Art. 467 ZGB)
A valid course can only be created by those who are at least 18 years old and whose judgment is not restricted at the time of writing.
Validity of the LV (including Art. 519 ff. ZGB)
A course is only valid if it adheres to the form and content prescribed by law. Orders made under the influence of error, deception, threat or coercion are invalid. If the LV contains obvious errors and the will of the testator can be clearly identified, the erroneous orders are invalid.
Immoral and / or illegal requirements for heirs make the LV invalid. For other people only annoying and / or nonsensical requirements are considered to be non-existent.
If the LV has not been formally established, it is also invalid.
If an LV is invalid, this must be asserted in court by means of an action for invalidity (); otherwise it must be observed despite its deficiency. The LV is only null and void if there are serious defects. In this case, the LV is not to be observed ex officio, even without asserting a complaint.
Public order (Art. 499–504 ZGB)
The public decree is made before a cantonal official or notary in the presence of two witnesses. The relevant document is drawn up by the official in accordance with the testator's instructions and signed by the testator and the official. With their signature on the LV, the two witnesses confirm that the testator has read the decree and agreed to it; you do not need to know the content of the course.
Personal disposal (Art. 505 ZGB)
The personal order must be handwritten, dated and signed by the testator. It can be handed over to an official body for safekeeping, but this is not mandatory. The participation of officials and / or witnesses is not required.
Oral decision (Art. 506–508 ZGB)
The verbal injunction can be given if the circumstances do not permit any other course of action (in the case of imminent danger of death, traffic blockage, epidemics or war events). The testator has to explain his will to two witnesses. They must immediately write down his order as well as the place and date and confirm it with their signature; the witnesses must then immediately hand over the order to the competent authority. If the testator is subsequently able to draw up a public or handwritten decree, the oral decree loses its validity 14 days after this date.
Statutory inheritance claim (Art. 457–466 ZGB)
(see also: Legal Succession in Switzerland )
Unless otherwise specified in the course, the inheritance will be divided according to the following scheme:
- First generation descendants inherit in equal parts.
- Descendants of the 2nd generation only inherit if their immediate ancestor has already died and share the inheritance of the descendants of the 1st generation according to this scheme.
- Parents inherit only if there are no offspring, and in equal parts.
- If one parent has already died, his or her share goes to their offspring according to this scheme.
- If the deceased parent has no offspring, the entire inheritance goes to the surviving parent or (in the event of death) their tribe.
- If there are neither descendants nor parents (or their tribes), the inheritance is divided equally among the grandparents or (in the event of death) their tribes.
- If there are no more heirs in the tribe of the grandparents either, the inheritance falls to the canton of residence and / or to the municipality to be designated by it.
Surviving spouses and registered partners
Surviving spouses or registered partners inherit
- if they have to share with offspring, half of the inheritance;
- if they have to share with parents and their tribe, three quarters of the inheritance;
- in all other cases the entire inheritance.
Compulsory portions (Art. 471 ZGB)
Subject to disinheritance, the testator must adhere to the following compulsory portions:
- three quarters of the legal inheritance claim for one descendant;
- half of the legal inheritance entitlement for each parent;
- for the surviving spouse or registered partner, half of the statutory inheritance claim.
If the legal compulsory portions are violated in terms of value by the disposition, the heir can contest the disposition with an action for abatement () and have his compulsory portion restored.
Favoring the spouse (Art. 473 ZGB)
The testator can state in his LV that the usufruct of the legal inheritance claim of the descendants belongs to the surviving spouse. This disposition is valid until the surviving spouse remarries or dies.
Disinheritance (Art. 477-480 ZGB)
Through disinheritance, the testator can, in justified cases, refuse a legal heir's compulsory portion. Permissible reasons for withdrawing the compulsory portion in the course are serious crimes against the testator or a person closely related to him and / or a serious violation of family law obligations against the testator or his relatives. For a valid disinheritance, the exact reason must be given in the course. The share of the disinherited goes to the descendants of the disinherited as if he had already died at the time of the inheritance.
If there are certificates of loss against a descendant of the testator, the testator can withdraw half of his compulsory portion if he allocates this to his or her existing and later-born children.
Insertion of subsequent heirs (Art. 488–492 ZGB)
The testator can oblige one or more heirs ("previous heirs") to pass on the inheritance to a subsequent heir at a specified time. The subsequent heir can freely dispose of the inheritance; further influence of the testator is not permitted.
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- Higher Regional Court Frankfurt am Main: The possibility of bright moments is not enough for testability. August 17, 2017. Retrieved October 25, 2017 .
- OLG Frankfurt a. M. of January 27, 1997, Az. 20 W 21/97
- Judgment quoted in the online lexicon of care law , accessed on July 1, 2010.
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- Higher Regional Court Munich: Effect of the contestation of the joint will by the surviving spouse. OLG Munich, July 24, 2017, accessed on November 17, 2017 .