Recognition of British Wills as Regards to Form
Requirements of a valid Will regarding Form under German Law
Pursuant to § 2231 BGB, the testator can choose between two forms of regular Wills
Recognition of a British Will in Germany regarding to Form
As most British Wills are machine-typed and include two witnesses, British Wills often do not comply with the formalities of either § 2247 BGB or § 2233 BGB.
However, as Germany has ratified the Hague Convention on the Form of Testamentary Dispositions, a British Will is recognized in Germany as valid as regards to form, if its form complies with the internal law:
- of a nationality possessed by the deceased, either at the time when he made the disposition, or at the time of his death, or
- of the place where the deceased made it, or
- of a place in which the deceased had his domicile or habitual residence either at the time when he made the disposition, or at the time of his death, or
- so far as immovables are concerned, of the place where they are situated or
- of the applicable law with respect to the succession or the law that would have been applicable at the time of the testamentary disposition.
Substantive Validity of a British Will
From a German perspective, the substantive validity of a Will (e.g. capacity to make a Will, interpretation) made under the laws of England and Wales is governed by the law which, under the European Succession Regulation (Europäische Erbrechtsverordnung), would have been applicable to the succession of the person who made the disposition if he had died on the day on which the disposition was made. See Art. 24 of the European Succession Regulation.
If there is a valid choice of law under Art. 22 of the European Succession Regulation (Brussels V) or a deemed choice of law under Art. 83 para 4 of the European Succession Regulation, the chosen law governs the substantive validity of the Will.
Please note: If the Will was made without contemplation of German law and the applicable law is German law, the German probate court (Nachlassgericht) may have to interpret the Will and, in some cases, it may not be recognized as being fully effective and may only result in partial recognition. This may delay the probate process in Germany.
Recognition of a British personal representative
A British administrator cannot act in Germany. Whether a British executor can act as an executor in Germany depends on the powers and duties granted to them. Ultimately, the question is whether the testator wanted him to have (exclusive) rights of administration and disposal with regard to the assets in Germany (as well).
Scope of the British Will and Unintentional Revocation
Many British Wills do not deal with foreign (i.e., non-UK) assets, because sometimes the scope of an English Will is restricted to dealing only with the estate in the UK. If the decedent made both a German and a British Will, a Will is often (partially) unintentionally revoked.
Impact of the German Compulsory Share
If German law governs "succession as a whole" of the worldwide estate or property in Germany, forced heirs may claim the forced share. However, as the German compulsory share is only a claim in money, this does not invalidate the Will.
Requirement of a German Certificate of Executorship and/or Certificate of Inheritance
There is no specific law that requires a German certificate of inheritance (Erbschein) or German certificate of executorship (Testamentsvollstreckerzeugnis) to be obtained and/or presented to administer an estate in Germany. Pragmatically, heirs or executors will need to obtain a German certificate of inheritance or executorship (or both) to access and marshal assets in Germany. For information on how to obtain a German certificate of inheritance, please check our article German Certificate of Inheritance.
