Execution of Wills under German Law
Under the German Civil Code (BGB), the testator can choose between two forms of regular Wills:
- the holographic Will (eigenhändiges Testament) or
- the notarial Will (notarielles Testament), also referred to as public Will. See §2231 BGB
Holographic Will
A testator may make a valid will wholly by his or her own handwriting and signature. See § 2247 (1) BGB. Attestation and/or orwitness signatures are unnecessary. However, a will written on a typewriter or computer is not deemed to be handwritten even if it is signed by the testator.
A valid holographic will requires that the will be handwritten and that the signature of the testator be made personally by the testator and that such signature follows the end of the text. See § 2247 (1) BGB. A signature on an envelope containing a testament may be sufficient if the letter is sealed.
The testator should state the time and place where he/she made the will. However, if the testator fails to do so, the testament is still valid, if the time and place can be determined otherwise. See § 2247 (5) BGB.
The signature should contain the first name and the surname of the testator. See § 2247 (3) BGB. However, failure to include such information may not necessarily be fatal if the identity of the testator can be clearly determined and that the testator intended to make a will. See § 2247 (2) BGB.
Notarial Will
If the Testator wants to make a notarial will, he/she must declare orally to a German notary (Notar) or equivalent that the will document contains his intentions. See § 2232 BGB.
In most cases, the will is discussed with the notary prior to the execution appointment as the notary will typically draft the will. The writing does not need to be written by the testator in the case of a notarial will. It is sufficient that the notary's recording is approved and signed. See § 131 BeurkG.
Formalities under Florida Law
In Florida, the regulations regarding the valid execution and witnessing of a Will are articulated in Chapter 731 (Florida Probate Code) of the Florida Statutes (Fla. Stat.).
According to Fla. Stat. § 732.502 (1) a will must be in writing, signed by the testator and authenticated by two witnesses. However, if the testator was a nonresident the Florida Probate Code relaxes its strict formalities for the wills: Without defining the term “nonresident,” the Probate Code recognizes as valid a foreign will that does not comply with all of the formalities required of a resident's will, if the nonresident's will is valid under the laws of the state or country where executed. See § 732.502(2). Even if executed by a nonresident, however, holographic wills and nuncupative wills are not recognized. Id. Regarding the wills of nonresidents, the Probate Code reads:
"(2) Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state if valid under the laws of the state or country where the will was executed. A will in the testator's handwriting that has been executed in accordance with subsection (1) shall not be considered a holographic will." See § 732.502(2) (emphasis added).
Recognition of German Wills in Florida
Recogition of a German Holographic Will
In re Estate of Salathe v. Salathe, 703 So. 2d 1167 (Fla. Dist. Ct. App. 1997) it was held, that a (German) holographic will is without force and effect. This is certainly correct as far as real property is concerned as the laws of Florida govern succession with regard to real property (which was at stake in In re Estate of Salathe v. Salathe).
However, under common law, the law of the decedent's domicile at the time of his death governs the validity and effect of a will (In Re Estate of Biederman, 161 So. 2d 538 [Fla. Dist. Ct. App. 1964]) and I cannot see that it was the legislators intent to change this common law rule when enacting Fla. Stat. § 732.502 (2). Consequently, in our opinion, a holographic is valid as far as personal property is concerned, if the decedent`s domicile at the time of his/her death was in Germany.
Forum Shopping Consideration: Additionally, from the perspective of Germany, the will may be valid as regards to form even with regard to the real estate in Florida. See Decision of the Federal Court of Justice (Bundesgerichtshof), file number IV ZR 135/03. Thus, if a German court judgement could be enforced in Germany or in any other member state of the European Succession Regulation, it may be advisable to file a lawsuite in a Germany if the will cannot be probated in Florida.
Recognition of a German Notarial Will
As Florida requires that a typed will must be witnessed by two adults, a German notarial (notarielles Testament) will not authenticated by two witnesses does not comply with the formalities of Fla. Stat. § 732.502 (1). However, if the testator was a nonresident, the notarial Will would be validated under Fla. Stat. § 732.502 (2) as German notarial Wills are (with some exceptions) signed by the testator. Furthermore, as far as German law applies, it may be valid under German law.
