German Law Requirements for Wills
When drafting a will in Germany, you should be aware that certain rules govern the process. Generally, you can go down the route of getting notarial assistance or draft a will privately. With notarial assistance, you can be assured that the testament in question will be drafted in the appropriate legal form, and the person’s heirs will be provided with their inheritance. Writing your own private will makes it is more likely that mistakes may be made. German courts can be quite strict when it comes to implementing wills if they do not follow the correct requirements.
When writing a will in Germany, the person needs to be over the age of sixteen in order for it to be considered valid. The person in question must also be deemed competent when it comes to looking after their own affairs. In this instance, people with serious disabilities, serious mental health conditions or psychological disorders may not be deemed as competent. These rules regarding competence are in accordance with § 2229 BGB.
When it comes to private wills, you should be aware that it is required that they be handwritten (§ 2247 BGB). In this instance, typed wills (on a typewriter or computer) may not be deemed as valid as a recognised will. It is also recognised as important the will is dated and the place of writing is recorded. Although a signature is not a formal requirement, it is certainly strongly advised that one supplies a recognisable signature. Without a signature, a will may be disputed because it can lead to question marks arising over whether the will in question is truly that of the testator.
Under German law, it is not possible to completely disinherit a person’s heirs – unless there is serious reason to do so (serious criminal offences against the person). A complicated and difficult relationship between parents and their children is not enough for them to completely disinherit a child. This is even the case if there have been many years of little or no contact. If a testator does not include those heirs (children, spouses and parents – in cases where there are no children), they will be entitled to a compulsory statutory entitlement (der Pflichtteil). The rules regarding compulsory statutory entitlements are derived from §2303 BGB. However, outside of the inability to completely disinherit one’s descendants/heirs, the testator has the power to choose how they will distribute their assets within their will.
In terms of the recognition of international wills, Germany is a member of the Hague Convention on the Form of Testamentary Dispositions. What this means is that, in general, Germany recognises foreign wills. The Convention has rules stating that wills should generally be recognised when they follow the laws of the country in which they were drafted if that is where the person had their residency, their citizenship or primary domicile. In turn, this results in one not being required to draw up a German will should they have one made abroad.
However, it is worth getting legal advice on this topic if you want to ensure that your testament will be followed and officially recognised. Legal counsel can also ensure that your will has been drawn up with the other jurisdiction’s legal requirements. Grey areas can arise in some cases where complications arise with the citizenship and residency of the testator. This can result in (for example) a will designed for another jurisdiction being interpreted and enforced by German law – even when it was not intended to be. Obviously, such a case can lead to the testators wishes not being carried out in the manner they may have aimed for. Guidance through the field of inheritance law and wills in Germany is crucial.