Ruling of the LG Frankenthal on Testamentary Capacity in Cases of Dementia – Ref. 8 O 97/24
Life expectancy is increasing. However, this development has its downsides, as more and more people are diagnosed with dementia. Nevertheless, a diagnosis of dementia does not automatically equate to a lack of testamentary capacity. The Regional Court (Landgericht, LG) of Frankenthal emphasized this in a ruling dated July 18, 2024, which is not yet legally binding (Ref.: 8 O 97/24).
If a person making a will is unable, due to a severe mental illness, to comprehend the significance of their last will and testament and to act accordingly, they are considered legally incapable of making a will under § 2229(4) of the German Civil Code (BGB). However, as noted by MTR Legal Rechtsanwälte, a law firm that advises on inheritance law among other areas, this does not mean that a mental illness such as dementia automatically results in a lack of testamentary capacity.
Dementia Does Not Automatically Lead to Incapacity to Make a Will
The LG Frankenthal also clarified in its judgment of July 18, 2024, that dementia alone does not automatically render a person incapable of making a will. What matters is whether the person, despite their illness, can still form a clear judgment about the consequences of their testamentary dispositions and make decisions independently of outside influence.
In the case at hand, the deceased had no children or other relatives entitled to a compulsory share of the inheritance. In her handwritten will from 2018, she appointed the son of a cousin and his wife as her heirs, established executorship, and designated her tax advisor as the executor. The deceased also owned a valuable property, with the upstairs apartment occupied by the son of a friend.
Onset of Dementia
In early 2021, the deceased was hospitalized for a few days due to a bone fracture. During her stay, the hospital diagnosed the onset of dementia as a secondary condition.
Shortly after her discharge, the 90-year-old deceased created a new notarized will. In this will, she bequeathed the entire property to her friend’s son, who had lived in the upstairs apartment of her house for about 30 years. The will also included a note indicating that the notary assessed her as fully capable of managing her affairs and making a will.
The Will Is Valid
The deceased passed away a few months later. At the request of the heirs, the tax advisor designated as executor was removed for good cause, and an attorney was appointed as her successor. The new executor contested the notary’s assessment, arguing that the deceased lacked testamentary capacity. To support his claim, he presented medical records confirming the onset of dementia. He sought a court order in expedited proceedings to declare the deceased incapable of making a will and invalidate the notarized testament. This effort appeared aimed at preventing the valuable property from passing to the tenant.
However, the LG Frankenthal did not accept the executor’s argument. The court noted that inheritance law presumes testamentary capacity unless proven otherwise. The executor failed to provide such proof, the court ruled. The submitted medical records mentioned the onset of dementia but did not include any assessment of its severity. Without this, a reliable determination of testamentary capacity was impossible. The court explained that while moderate to severe dementia generally invalidates a will, mild dementia does not necessarily preclude testamentary capacity.
Testamentary Capacity: A Common Point of Dispute Among Heirs
Given the court’s assessment that the executor was unlikely to prove the deceased’s incapacity in substantive proceedings, it dismissed the expedited request.
The question of testamentary capacity frequently leads to disputes among heirs. To prevent inheritance disputes and ensure that the deceased’s last wishes are carried out, it is advisable to plan wills proactively. In such cases, obtaining a medical certificate of testamentary capacity from a qualified physician can be helpful. A physician’s evaluation carries more weight than that of a notary, who is not a medical expert.
MTR Legal Rechtsanwälte advises on wills and other inheritance law matters.
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