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Strict test for testamentary capacity if serious delusions suspected

December 2017

The testator must have testamentary capacity as a prerequisite for a valid will. Chronic delusions can give rise to a lack of testamentary capacity, as demonstrated by a ruling of the Oberlandesgericht (OLG) Frankfurt [Higher Regional Court of Frankfurt].

In principle, a person who is of legal age is deemed to have the capacity to prepare a will. Notwithstanding this, the following preconditions needs to be satisfied: the testator needs to be able to appreciate the significance of his testamentary dispositions as well as their impact and have arranged his dispositions of his own volition. The issues of whether the testator has testamentary capacity can take centre stage, for instance, in cases involving dementia. We at the law firm GRP Rainer Rechtsanwälte note, however, that it is not enough to simply call into question whether the testator has the capacity to prepare a will. It needs to be proven.

One case that came before the Oberlandesgericht Frankfurt was not concerned with the testatrix’s dementia but rather whether she potentially lacked the capacity to draft a will because of her chronic delusions. According to German law, if someone is not in a position to understand the significance of a declaration of intent he made and act pursuant to this understanding on account of a mental disturbance, weakness of the mind or impaired consciousness, then he cannot draw up a will.

The testatrix suffered continuously from fears of being robbed. For this reason, she hired detectives who fitted her house, among other places, with cameras. The childless and widowed testatrix eventually appointed the detectives as heirs in her will. Distant relatives who were eligible to become legal heirs appealed against this. They took the view that the testatrix suffered from pathological paranoia at the time of drafting the will and did not have the capacity to prepare it.

After obtaining an expert opinion, the probate court was not able to conclude that there was a lack of testamentary capacity, reasoning that it is possible the testatrix drew up her will in a “lichten Moment”, a “moment of clarity”. The OLG Frankfurt overturned this ruling and referred the case back to the probate court for further clarification (Az.: 20 W 188/16). It was held that in the absence of further clarification it could not be proven whether the testatrix acted in a “moment of clarity”. The Court went on to say that there is certainly a lack of testamentary capacity if the motives for preparing the will themselves are based on a lack of freedom attributable to an illness. The OLG stated that it needs to be assessed whether the freedom to make voluntary decisions has been nullified by pathological disorders affecting decision-making processes.

Lawyers who are versed in the field of succession law can advise on issues relating to estates.

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