A will states the last wishes of a deceased person. However, it is only valid if it meets certain criteria.
When a loved one dies, it is a very painful situation for those left behind. If you then also have to worry about things like settling your estate, things can get really cruel. It is at least a small relief if the deceased has already clarified the questions about their inheritance themselves. This takes the form of a will, which must meet various criteria to be valid.
1. Heading: Will must be marked as such
A will must be recognizable as a will. A letter with wishes or a similar document may not be enough to actually record a last will.
Instead, inheritance lawyer Jan Bittler recommends, according to the website of the nursing service
Malteser.de
, that a will be given an appropriate heading. "It should have an appropriate heading, such as 'My Will' or 'My Last Will'."
2. Will only be handwritten: No printed documents allowed
A will that you write yourself must always be handwritten to be valid. This is regulated in Section 2247 of the Civil Code (BGB). It says, among other things: “The testator can make a will by means of a declaration written and signed by his own hand.”
This means that a will written on a computer or one that was written with a typewriter or otherwise printed is not valid. According to
t
-
online.de
, it must
be handwritten in order to prove the authenticity and genuineness of the document in case of doubt.
3. Sign the will correctly: Full name, date and place required
In addition to a heading and the fact that it must be handwritten, a valid will also always requires a signature from the testator. According to the law, this should contain both first and last names or otherwise be traceable to the deceased, i.e. be recognizable as genuine. Only the signature makes the will valid and distinguishes it from a draft will, for example. If the document consists of several pages, each page requires a signature.
In addition, the will must be marked with the date, which must include the day, month and year, and the place where it was written. If there are several wills, the one with the most recent date always applies.
4. Name: To whom exactly the estate should be inherited
Instead of writing in the will that “my daughter”, “my son”, “my spouse” or “my carer” inherits something, you should state the names of the heirs precisely with their first and last names. In the end, this can prevent misunderstandings where it is not clear who is meant and should be appointed as the heir.
5. Fitness to do business: Not everyone can draw up a will
In order to draw up a will, you must have legal capacity according to German law. This means that you have to be of legal age and in full possession of your mental powers. Minors who want to draw up a will can still do so, but only with the help of a notary. The same applies to people who cannot read or write a will themselves. They also have to have their will drawn up by a notary.
The advantage of a will that is drawn up at a notary is that it is automatically filed with the probate court and with the Central Register of Wills of the Federal Chamber of Notaries. In the event of death, you no longer have to worry about submitting the will there. A notary can also advise the testator in drawing up the will.
By the way: A will can always be changed as long as the testator is legally competent. For example, a handwritten document can be destroyed, or you can write a revocation or have the last will changed by a notary.
Will and dementia: At what point you can no longer change your last will
If a testator is no longer legally competent, for example because he has become demented, then he can neither draw up nor change the will. To ensure that no changes are made to the detriment of the heirs that the dementia patient would not have included in the will if he were healthy, people are no longer considered to be legally competent from a certain stage of dementia. The legal capacity and testamentary capacity in the case of dementia depends on the individual case.
According to
Focus.de
, it is usually the middle stage of the disease when those affected lose the ability to draw up a will. At this point, the affected person may forget names and people, recent events or where they live. From this stage onwards, the legal capacity can be questioned.
Anyone who suffers from dementia but still wants to draw up, change or revoke a will can do so under certain conditions. In this case, it is important that the person affected still knows and can articulate certain things. People suffering from dementia still need to know who they are, what they are accomplishing by drawing up a will, what they want to pass on and to whom they want to leave their inheritance. If these criteria are met, a will can still be made.
Nevertheless, decisions are always made on a case-by-case basis. According to BGB § 2229, one is either capable of testating or incapable of testifying. There is no limited legal capacity in a will.