A will can only be valid if the person who drafted it has the capacity to make a will. If disputes emerge amongst heirs, it is possible for this to result in the testator’s testamentary capacity being contested.
A testamentary will enables the testator to lay out his final wishes and arrange his estate. This may give rise to disputes among heirs who potentially feel that they have been deprived of their inheritance. The testator’s testamentary capacity is subsequently often called into question.
By definition, testamentary capacity presupposes that the person who drafted the will is capable of forming a clear judgment concerning the consequences of his instructions, especially their impact on the personal and economic circumstances of those whom they affect. Furthermore, the testator must in principle be in a position to act without being subject to the influence of third parties. This does not mean that he is not allowed to take on board the suggestions of third parties and include these in his will of his own volition. There has to be testamentary capacity from the beginning of when the will is being drafted to its conclusion.
The testator can quell later disputes regarding his capacity to make a will by obtaining an expert assessment from a specialist medical practitioner when drawing up the will. A notarized will is generally not sufficient for this purpose.
Since case law starts from the assumption that an individual does have the capacity to make a will, it is relatively difficult, although certainly possible, to challenge a will based on a lack of testamentary capacity, as this needs to be supported by evidence to this effect. Grounds for a lack of testamentary capacity include, inter alia, various dementia related disorders, delusions and manic depression. These disorders must, however, be proven in each individual case. It is to be expected that assessing a person’s testamentary capacity will assume greater importance going forward due to demographics trends, increasing life expectancy in addition to the rising number of dementia related disorders.
Apart from the issue of testamentary capacity, a will has to meet several conditions for it to be valid and capable of implementing the testator’s final wishes. Among those which are mandatory are the need for a heading, a handwritten signature as well as for the location and date to be specified. Additionally, the statements in the will ought to be clearly formulated so that there is no room for interpretation which could subsequently lead to disputes amongst the heirs.
Lawyers who are competent in the field of succession law can advise you when drawing up a will.
ABOUT THE AUTHOR: GRP Rainer LLP
GRP Rainer LLP is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices in Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.
Michael Rainer
Lawyer, Managing Partner
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
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