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Power of attorney can constitute a valid will

August 2018

It is possible for a power of attorney to constitute a valid will. That was the verdict of the Oberlandesgericht (OLG) Hamm, the Higher Regional Court of Hamm, in a ruling from May 11, 2017 (Az.: 10 U 64/16).

A will should always be clearly recognizable as the testator’s final wishes to prevent disputes from arising among the heirs. We at the law firm GRP Rainer Rechtsanwälte note that it will ideally have an unambiguous heading such as “my will” or “my final wishes”. That being said, even personally prepared documents that, for instance, feature the heading “Vollmacht”, i.e. “power of attorney”, are capable of constituting a valid will. That was the verdict of the Oberlandesgericht Hamm in a recently published ruling.

In the case in question, the testatrix had drafted a testamentary disposition featuring the heading “Testament” (will) in which she provided that her two sisters were to inherit half of her detached house each. Only a few days later, the testatrix prepared another document with the heading “Vollmacht” in which she granted her niece power of attorney in relation to her savings contract with a building society, her checking account, savings book and financial investments beyond her death and to have the balances paid out to her.

There was no disagreement regarding the fact that the testatrix had designated her sisters as co-heirs to half of the estate each as per the will, as the house represented the testatrix’s main asset. The probate court issued a certificate of inheritance accordingly.

What was disputed, however, was whether the testatrix’s niece was entitled to inherit. The latter argued that her aunt had allocated the balances to her as legacies and that the second document was not merely a power of attorney but rather a will. The OLG Hamm found in the niece’s favour, concluding that the power of attorney granted constituted a valid will. The Court went on to say that it had been personally written and signed by the testatrix, and thus met the formal requirements for it to be a will. Moreover, it was possible to identify a serious intention to make a will; the fact that the document featured “Vollmacht” as its heading did not, according to the OLG, count against this, because it was already clear from the will that the testatrix was not familiar with the usual wording associated with a testamentary disposition. It could therefore be assumed that the testatrix had wanted to bequeath the balances to her niece.

A will should always be clearly worded to ensure that testamentary dispositions are in fact capable of being implemented in accordance with the wishes of the testator. Lawyers who are experienced in the field of succession law can offer advice.

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