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OLG Düsseldorf – Deletions in a will need to be ambiguous

April 2018

If a testator removes parts of his will, these deletions should demonstrably come from him. Otherwise, the deleted passages might still be effective.

A testator is free to amend his will. That being said, he ought to make sure that any changes made can be unequivocally attributed to him. In cases involving a handwritten will, the changes also need to be handwritten by the testator and preferably signed and dated. We at the commercial law firm GRP Rainer Rechtsanwälte note, however, that it may be a good idea to draw up a new will to ensure that the testamentary dispositions are effectively implemented.

The fact that subsequent amendments can be ineffective is demonstrated by a ruling of the Oberlandesgericht (OLG) Düsseldorf [Higher Regional Court of Düsseldorf] from September 29, 2017 (Az.: I-3 Wx 63/16). In the case in question, the testator had written a will with a black pen in which he designated friends and his partner as heirs. His appointment of friends as heirs was later crossed out with a blue pen.

Following the death of the testator, the friends he initially designated as heirs applied for a certificate of inheritance. However, the probate court dismissed the application because they had been crossed out as heirs. Moreover, it was established on the basis of an expert handwriting assessment that the testator had personally made the changes.

Notwithstanding this, the OLG Düsseldorf took a different view. It held that while the testator can make amendments to his will by crossing out passages with a view to nullifying them, it could not be proven with sufficient certainty in this particular case that the changes did in fact come from the testator as there was no witness who could confirm this. The mere fact that the testator stated that he wished to amend his will did not justify this conclusion. Furthermore, no new heir was appointed. The OLG ruled that even if the testator did personally cross out the passages, there was still doubt regarding his intent to nullify; this act might only have served as preparation for a new will.

To ensure that testamentary dispositions are actually capable of being implemented in accordance with the wishes of the testator, both the wording as well as any subsequent amendments in a will should always be unambiguous and attributable to the testator.

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