Joint Will Invalid When One Spouse Lacks Testamentary Capacity
Spouses often create a joint will, naming each other as sole heirs to safeguard against claims from other potential heirs. However, if one spouse is no longer capable of making a will when drafting the testament, the entire joint will can become invalid. The Celle Higher Regional Court (OLG) clarified this on March 14, 2024 (Case No.: 6 W 106/23), though it also noted that a joint will does not necessarily have to be invalid solely due to one spouse’s incapacity to make a will.
Under Section 2229, Paragraph 4 of the German Civil Code (BGB), a person lacks testamentary capacity if, due to illness, they are unable to understand the significance of their declaration of intent and act accordingly. This may apply to individuals with severe mental or dementia-related illnesses, which spouses should consider when drafting a joint will to avoid rendering their last wishes invalid, according to the commercial law firm MTR Legal Rechtsanwälte, which provides counsel on inheritance law.
Spouses Designate Each Other as Sole Heirs
In the case heard by the OLG Celle, the question was whether both spouses were capable of making a will at the time it was created. The couple had originally made a joint will in 1993, in which they decided that their son would inherit their house and adjoining building and forest area, while their daughter would receive their cash assets.
In 2018, the couple destroyed this will and created a new joint will, naming each other as sole heirs. In an addendum, the spouses designated each other as primary heirs freed from all restrictions, with their daughter as secondary heir and sole final heir.
All documents were handwritten and signed by the wife, with the husband adding his signature. At the time, the wife was already in a nursing home due to dementia. After her husband’s death, she applied in 2020 for a certificate of inheritance as the sole primary heir.
Incapacity Due to Dementia
However, her son contested the application, arguing that neither parent was capable of making a will at the time. The probate court subsequently ordered an evaluation of the wife’s testamentary capacity. Experts concluded that due to her dementia, she was not capable of making a will when drafting both the will and the addendum. Since the husband was deemed capable of making a will, the court initially intended to reinterpret the joint will as an individual will made by the capable husband.
The son appealed this decision to the OLG Celle and was successful. The court ruled that there was no valid joint will, as the wife lacked testamentary capacity. The reasoning was that a joint will must reflect the intent of both spouses; thus, if one is incapable of making a will, a valid joint will cannot be established. This situation was likened to one in which only one spouse signs the joint will.
No Reinterpretation as an Individual Will
In this case, the court also found that the invalid joint will could not be reinterpreted as a valid individual will made by the capable husband. The reinterpretation failed because the husband had not written the will himself but merely signed it. To meet formal requirements, an individual will must either be entirely handwritten by the testator or notarized. The husband’s signature on a document written by his wife was insufficient, according to the OLG.
Had both spouses handwritten and signed their provisions separately, then both declarations would be formally valid, the OLG Celle clarified. However, a simple signature does not suffice as an individual testament; thus, the will was declared invalid.
Seeking Alternatives
This ruling shows that a joint spousal will may not be the best option for legally securing last wishes if one spouse faces potential incapacity. In such cases, exploring other suitable options is advisable.
MTR Legal Rechtsanwälte offers consultation on matters related to wills and additional inheritance law topics.
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