What is the relationship between the post-mortem power of attorney and the execution of the will?
The post-mortem power of attorney and the execution of a will are legal instruments available to a testator to ensure the settlement of his or her estate and all property-related matters.
Both the post-mortem power of attorney and the execution of a will have in common that they relate to the administration and distribution of the testator's assets. In both cases, a third party is appointed to fulfil these tasks.
In addition to the post-mortem power of attorney, which only becomes effective after the death of the person granting the power of attorney, there is also a transmortem power of attorney. The transmortal power of attorney comes into effect during the testator's lifetime and enables the authorised person to manage their financial affairs during their lifetime. In contrast, the execution of a will only begins after the death of the testator and can only be arranged by means of a will.
In some cases, it may make sense to use both a post-mortem power of attorney and an executorship. This may be necessary in particular if the execution of the will does not cover certain tasks or if the executor has additional tasks that are covered by the post-mortem power of attorney.
However, difficulties can arise if the testator has granted several post-mortem powers of attorney and simultaneously ordered the execution of the will without precisely defining the relationship between them or misjudging the extent of the execution of the will. The BGH dealt with this problem in its ruling of 14 September 2022 (ref. no.: IV ZB 34/21).
In this case, the parties disputed the validity of a withdrawal of an application declared by the granddaughter of the deceased testator in property law proceedings. These proceedings concerned the transfer of co-ownership shares and the payment and surrender of certain documents.
On 31 January 2020, the testator had granted her granddaughter a transmortal power of attorney, which authorised her to represent her in court in all personal and property matters. In a handwritten will dated 11 February 2020, the testator appointed her granddaughter as her sole heir and at the same time ordered the execution of the will. On the same day, the testator granted the complainant a post-mortem power of attorney in the event of her death to represent her in all personal and property matters in relation to anyone and in any way after her death. On 22 February 2020, the testatrix drew up another will in her own hand, in which she reiterated the sole heir status of her granddaughter, but this time ordered the execution of the will „due to the assertion and enforcement of her claims against her husband“.
A lawyer was appointed executor of the will, who was also the petitioner in this case. The areas of responsibility that are not affected by the execution of the will should remain with the executor of the will through the complainant.
As a result of the withdrawal by the granddaughter, the executor should bear the costs of the proceedings.
This case illustrates the complexity that can arise when a testator grants several post-mortem powers of attorney and simultaneously orders the execution of a will without clarifying the relationship between them or properly defining the extent of the execution of the will.
Overall, the BGH found that the relationship between a post-mortem power of attorney and the execution of a will cannot be determined across the board, but must be determined on a case-by-case basis, taking into account the testator's intentions and by interpreting the power of attorney document and the will.
It is advisable for testators who are considering both a post-mortem power of attorney and the execution of a will for the administration of their property and the settlement of their estate to clearly define the relationship between the power of attorney and the subsequent execution of the will. It is also advisable to clearly define the extent of the power of attorney in the power of attorney deed and to ensure that there is no overlapping of duties, as in the case decided by the BGH. The executor should also check whether he or she can revoke competing powers of attorney.