OLG Munich on Authenticity and Testamentary Capacity – Decision of August 12, 2024, Case No. 33 Wx 294/23 e
Disputes over the authenticity of a handwritten will and the testamentary capacity of the testator are common. In a decision dated August 12, 2024, the Higher Regional Court (OLG) of Munich clarified that an expert opinion is generally necessary to determine the authenticity of a document (Case No. 33 Wx 294/23 e).
If no will is present, the statutory order of succession applies. This may not always align with the testator’s wishes. By drafting a will, the testator can determine their heirs according to their own intentions. However, this often leads to disputes with statutory heirs, who may only receive the compulsory share. Doubts about the authenticity of the document and the testamentary capacity of the testator frequently become points of contention among heirs, according to the law firm MTR Legal Rechtsanwälte, which provides advice on inheritance law, among other areas.
Testator Appoints Sister as Sole Heir
In the case before the OLG Munich, the testator was married and had a daughter from his first marriage. As he was gravely ill and had been diagnosed with a glioblastoma, he drafted a handwritten will shortly before his death, naming his sister as the sole heir.
After his passing, his wife and daughter expressed doubts about the handwriting and, therefore, the authenticity of the will. They also claimed that the testator was no longer capable of making a will at the time it was written. The deceased’s sister, on the other hand, applied for a certificate of inheritance identifying her as the sole heir.
Doubts Cannot Be Entirely Ruled Out
After obtaining an expert opinion, the probate court concluded that the will was written by the testator himself and that the sister was entitled to the certificate of inheritance. This assessment was confirmed by the OLG Munich, which dismissed the wife and daughter’s appeal.
While some residual doubts can never be completely ruled out, a sufficient degree of certainty is required to prove that the testator personally drafted the will. This level of certainty was achieved in this case, allowing the court to confirm the authenticity of the will based on the expert opinion. The expert considered it highly likely that the testator was indeed the author. This conclusion appeared plausible, particularly because the testator had spent the last phase of his life with his sister and had also expressed to third parties his intention for her to inherit, according to the OLG Munich.
Testamentary Capacity Confirmed Despite Illness
Additionally, the court determined that the testator was capable of making a will at the time of its creation. This was confirmed by a separate written expert report commissioned by the OLG Munich.
Under Section 2229(4) of the German Civil Code (BGB), a testator is deemed incapable of making a will if, due to a pathological mental disorder, intellectual weakness, or a disturbance of consciousness, they are unable to understand the significance of their declaration of intent and act accordingly. Furthermore, the testator must act free from the influence of interested third parties. Since mental disorders are considered exceptions, a testator is presumed to be capable of making a will unless proven otherwise. Based on these considerations, the OLG Munich found no reason to doubt the testator’s capacity.
The expert appointed by the court acknowledged that the testator’s glioblastoma was a condition that could potentially cause mental impairment. However, at a secondary level of assessment, it could not be definitively concluded that the disease had prevented the testator from acting of his own free will. The expert stated that, despite his severe illness, the testator remained capable of making a will.
Compulsory Share for Wife and Daughter
As a result, the testator’s sister has been confirmed as the sole heir. The wife and daughter are entitled only to their compulsory share, which amounts to half of their statutory inheritance portion.
MTR Legal Rechtsanwälte provides legal advice on wills and other matters of inheritance law.
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