Duty to deliver wills


According to § 2259 para. 1 BGB, anyone who has a will in his possession which is not placed in special official custody is obliged to deliver it to the probate court immediately after becoming aware of the death of the testator.

Often the obligation to deliver wills to the probate court is not known at all or the survivors do not worry about it because all legal heirs and testamentary considerations are in agreement anyway and deal with the estate according to the testamentary instructions. Single heirs also often assume that it is not necessary to deliver the will. Especially spouses, if they can continue to administer the estate without submitting the will and without a certificate of inheritance on the basis of powers of attorney and can dispose of estate objects, often see no necessity to deliver the will in their possession to the court.

Under certain circumstances, however, a violation of the obligation to deliver the will may result in an obligation to pay damages or even have criminal consequences. The Criminal Code (StGB) stipulates that anyone who destroys, damages or suppresses a document that does not belong to him with the intention of causing harm to another person is punished with imprisonment for up to five years or a fine. According to the legal regulation, all open as well as sealed documents with inheritance reference which, according to their content, represent a testamentary disposition, even if they are not designated as a testamentary disposition, must be delivered. Even if the owner of the document is of the opinion that it is not a will at all, the document must be delivered to the probate court.

The courts take the obligation to deliver the document very seriously. In some cases, liability is even assumed for negligent non-compliance with the obligation to deliver, for example if the person in possession of recognizably important documents of the testator fails to sift through them and therefore does not find and deliver a will (see OLG Brandenburg, judgment of 12.03.2008 - 13 U 123/07).




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