Decision of the Munich Higher Regional Court (OLG) dated 09.08.2024 – Case No.: 33 Wx 115/24 e
By drafting a will, a testator can override the statutory rules of succession and personally determine who will inherit their estate. However, for a handwritten will to be legally valid, it must comply with certain formal requirements. One of these requirements, as clarified by the Munich Higher Regional Court (OLG) in its decision dated August 9, 2024 (Case No.: 33 Wx 115/24 e), is that a handwritten will must bear the testator’s signature at the end of the document.
A will should always be drafted in clear and unambiguous terms to ensure that the testator’s final wishes are unmistakably recognized and to prevent inheritance disputes. In addition, a handwritten will must meet certain formal requirements to be legally effective, as emphasized by the commercial law firm MTR Legal Rechtsanwälte, which also provides advice on inheritance law.
Formal Requirements for a Will
A will should always include a clear title such as “My Last Will” or “My Will” to ensure it is recognized as the testator’s final declaration of intent. Furthermore, a handwritten will must be written entirely by hand by the testator, including the date, and signed personally. The testator’s handwritten signature is indispensable.
The term “signature” should be taken literally—meaning it must appear at the end of the will and not in the margin or any other part of the document. Otherwise, the will may be deemed invalid, as demonstrated by the OLG Munich’s decision.
Signature in the Margin of the Document
The case at hand concerned a purported will of a British citizen residing in Germany. After the divorced man passed away, a document emerged that was allegedly written by the testator. It was typed with the title “Last Will and Testament”, followed by a blank space where a name could be inserted. The document contained a list of six names with percentage allocations, but no further details were provided. Although the lower section of the document was blank and had ample space, the testator’s signature was placed in the margin.
One of the listed individuals applied for a European Certificate of Succession based on this document, claiming that the listed names should be considered co-heirs according to the specified percentages.
However, the deceased’s son, who was also named in the document, contested this claim. He argued that the document did not constitute a formally valid will. As a result, he claimed sole heirship based on statutory succession.
OLG Munich: The Signature Must Be at the End
The OLG Munich ruled in favor of the son, stating that the will was invalid due to the absence of the required signature of the testator. Consequently, the statutory rules of succession applied.
In its reasoning, the court emphasized that the signature represents the finalization of a will. It serves to ensure that no additions can be made afterward. A signature is a mandatory requirement for the validity of a will and cannot be disregarded for reasons of legal certainty. The testator’s signature guarantees the seriousness of the testamentary disposition and ensures that the document is complete.
The OLG Munich further clarified that, in principle, the signature must be placed at the end of the will. Exceptions may be made only in rare circumstances, such as a lack of space, provided it is clear that the signature is part of the text and intended as its conclusion.
In this case, however, no such exception applied, as the document was only about half-filled, leaving ample room for the signature at the end. Therefore, signing in the margin did not constitute a valid finalization of the declaration, according to the court.
Will Also Invalid Under English Law
Since the testator was a British citizen, the OLG Munich also examined whether the document could qualify as a valid will under English law. The court rejected this possibility as well, citing the lack of two witnesses required under English law to confirm the will’s execution.
As a result, the deceased’s son became the sole heir under statutory succession.
This decision by the OLG Munich highlights the necessity of complying with formal requirements when drafting a legally valid will.
MTR Legal Rechtsanwälte provides legal counsel on will drafting and other matters related to inheritance law and international succession law.
Feel free to contact us!
