Pursuant to § 1937 of the German Civil Code (BGB), a Will (Testament) is a unilateral disposition mortis causa (letztwillige Verfügung). Generally, the testator may at any time revoke or modify a will or part of a Will (See § 2253 BGB).
Capacity to make a Will under German law
Every person who has reached the age of sixteen can generally make a will. See § 2229 (1) BGB. A person incapable of understanding the testamentary disposition process due to mental incapacity including unsound mind, temporal derangement, and/or dementia cannot make a valid will. See § 2229 (3) BGB. Whoever claims that the testator lacked testamentary capacity carries the burden of proof.
Validty of a Will as Regard to Form under German Law
Pursuant to § 2231 BGB, the testator can choose between two forms of regular Wills
Holographic Will
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 will written on a typewriter or computer is not deemed to be handwritten even if it is signed by the testator. A signature on an envelope containing a testament may be sufficient if the letter is sealed.
Please note: Attestation and/or witness signatures are unnecessary. However, if there is a nexus to a common law jurisdiction (e.g. England, Australia, U.S.A.) it is generally advisable that the (German) also complies with the formalities of such jurisdiction.
The testator should state in the declaration the time when (day, month and year) and the place where he wrote it down. See § 2247 (2) BGB. However, if the testator fails to do so, the testament is still valid, if the time and place can be determined otherwise.
The signature should contain the first name and the last name of the testator. If the testator signs in another manner and this signature suffices to establish the identity of the testator and the seriousness of his declaration, such a signature does not invalidate the will. See § 2247 (3) BGB.
A person who is a minor or is incapable of reading text may not make a holographic Will. See § 2247 (4) BGB.
A Codicils (Testamentsnachtrag) must always be signed separately.
Incorporation of other documents by Will is only permissable if the content of such document is commonly known. As a consequence, lists by which the testator disposes of personal propery should comply with the formalities of German law if there is a nexus to Germany.
Notarial Will
A notarial Will (notarielles Testament), also referred to as public will (öffentliches Testament), is made by the testator declaring his last will to a German Notary (Notar) or handing the Notary a document with the statement that the document contains his last will. The testator may hand over the document either unsealed or sealed; it is not required to be written by him. 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.
Estate planning consideration: If the owner of real estate in Germany made a notarial Will, which clearly identifies the heir (Erbe), this heir can be registered as new owner of such real estate in the German land registry (Grundbuch) after he the opening of the Will (Testamentseröffnung). No German certificate of inheritance (Erbschein) is required. Accordingly, it is often advisable to make a Public Will if the testator owns real estate in Germany.
Wills signed in front of a German Consul are valid as notarial Will. See §§ 2 and 10(2) of the Consular Act. Such "Consular Wills" are quite rare as most German Consulates do not provide assistance with making a Will any more.
Irregular Wills
In emergency situations, particularly where the testator is close to death, the testator may make a will under special requirements. For example, wills can be made in certain situations in the presence of the mayor (See § 2249 BGB) or in the presence of three attesting witnesses. See §§ 2250, 2251 BGB.
Recognition of Foreign Wills as Regard to Form
Germany has ratfied the Hague Convention on the Form of Testamentary Dispositions. As a consequence, a foreign will is valid in Germany with respect 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.
Testamentary Dispositions in a German Will
Generally, a testator is free to determine the distribution of his/her property upon death by means of a Will. However, there are some exceptions from this rule. Thie most important restrictions to the testamentary freedom are the German forced share (Pflichtteil) and binding effects of a contract of inheritance (Erbvertrag) or a mutual will. Furthermore, the testator must use an instrument of the German Civil Code to express his wishes. The German Civil Code offers a wide range of instruments. E.g. the testator may:
- Appoint an heir (Erbe) and an alternate heir (Ersatzerbe);
- Appoint a legatee (Vermächtnisnehmer) and an alternative legatee (Ersatzvermächtnisnehmer);
- Grant a (limited) power of appointment (Bestimmungsrecht) to the executor, heir or any other person (Bestimmungsrecht, Zweckvermächtnis);
- Order subsequent heirship (Vor- und Nacherbschaft);
- Disinherit an intestate heir (Enterbung);
- Under certain conditions: Order deprivation of the forced share (Entzug des Pflichtteils);
- Impose a testamentary burden (Auflage) on an heir or a legatee;
- Give directions for the partitioning of the estate (Teilungsanordnung);
- Appoint an executor (Testamentsvollstrecker);
- Give directions to the executor (Verwaltungsanweisungen);
- Order extended / durable execution of the estate (Dauertestamentsvollstreckung) and appoint a durable executor (Dauertestamentsvollstrecker);
- Nominate a guardian (Vormund) for a minor;
- Deprive the other spouse of the parental rights with regard to the joint child`s interest in the estate;
- Elect the applicable law under Art. 22 of the European Succession Regulation; and
- Create a (family) foundation (Stiftung).
Please note: Trusts as such are no instruments of German inheritance law and German Property Law (Sachenrecht) does not allow to title assets into trust. Accordingly, it is not possible to transfer assets located in Germany to a trust during the lifetime of an individual or upon such person`s death. However, such a transfer does not necessarily have to be without effect. Instead, the trust may be interpreted as a German legal instrument which has similar effects, e.g. a foundation, durable execution of the estate or subsequent heirship.
Codicils
Under German law, wills may be amended by codicils. A codicil (zusätzliches Testament) must be executed in the same manner as a will (Testament).
Revocation of a Will (Widerruf des Testaments)
The testator may at any time revoke or modify a will or part of a Will. See § 2253 BGB. A will or part of a will is revoked only by the following:
- A later Will (§§2254, 2258 BGB);
- Destruction (e.g. burning, tearing) of the Will by the testator. See § 2255 BGB; or
- By withdrawal of a notarial Will from court custody of a will (amtliche Verwahrung). See § 2256 BGB.
If the later will is revoked, the earlier will is, in case of doubt, effective in the same way as if it had not been revoked. See § 2258(2) BGB.
If revocation is made by Will, the revocation itself may be revoked (e.g., by destruction). In this case the original Will revives. See § 2257 BGB.
Please note: The right to revoke a last Will and Testament may be limited by way of a contract of inheritance (Erbvertrag) or a mutual will.
In case of divorce, there is an presumption that the testator wanted to revoke the dispositions in favour of the spouse. However, the spouse may prove that it was not the testator`s intention to revoke the will in case of divorce. See § 2077 BGB.
Marriage or birth after execution of a Will does not make the Will automatically ineffective. However, the omitted spouse / child may claim the intestate share (gesetzlicher Erbteil) if he/she contests the Will in accordance with § 2079 BGB seq.
Joint Wills
Pursuant to §§ 2265-2273 BGB, spouses or registered same-sex partner (eingetragener Lebenspartner) can make a joint will (gemeinschaftliches Testament). A joint holographic will may be handwritten by only one spouse. However, both spouses have to sign the will in accordance with § 2247 BGB. A joint notarial Will may be made in accordance with §§ 2231(1), 2232 BGB.
Mutual Wills
Mutual Wills are permissable under German law. However, not all testamentary dispositions in a mutual Will are binding. Instead, only mutually connected dispositions - also referred to as reciprocal disposition (wechselbezügliche Verfügung) - are binding. A testamentary disposition in a joint will is mutually connected to another testamentary disposition if it would not have been made without that disposition. See § 2270(1) BGB.
According to § 2270(2) BGB, unless otherwise provided, it is presumed that a testamentary disposition is mutually connected to another testamentary disposition if the estate shall pass to the surviving spouse and after the death of the surviving spouse to a relative or otherwise related person (e.g. friend) of the first deceased spouse.
Pursuant to § 2270(3) BGB, § 2270(1) BGB only applies to
- The appointment of an heir (Erbe) or a legatee (Vermächtnisnehmer);
- A testamentary burden (Auflage); or
- a choice of law clause (Rechtswahlklausel).
Any other testamentary disposition, e.g. regarding the appointment of an executor (Testamentsvollstrecker) is not mutual.
If a reciprocal disposition (wechselbezügliche Verfügung) is revoked or invalidated, the corresponding testamentary disposition is invalid as well. See § 2270(1) BGB.
During the lifetime of the other spouse, any mutually connected disposition in the Joint Will may only be revoked by
- a new joint will, or
- by declaration (notarized in front of a German notary or equivalent) to the other party to the joint Will. See § 2271 BGB in connection with § 2296 BGB.
After the death of one spouse, a reciprocal disposition of the other spouse cannot, in principle, be revoked and is binding. See § 2271(1) BGB. As a result, a later Will is invalid as far as it affects the mutual disposition in the Joint Will. Furthermore, any lifetime gift or other transfer on death (e.g. by way of an insurance) becomes ineffective with the death of the survivor (and the survivor`s heirs may claim the gift back), if its was made with the intention to circumvent the binding effect of the mutual disposition. See § 2287 BGB. Such intention is generally assumed, if the testator did not have a "vital interest" in making the gift.
If the surviving spouse disclaims the inheritance, he/she is free to change his/her Will. See § 2271(2) 1 BGB.
