Drawing up a will can be a time-consuming endeavour. However, not every testator who wants to draw up a will has this time available due to a particularly dangerous situation or imminent death. In special situations, the law offers the option of drawing up a so-called emergency will.
Under what conditions is an emergency will permissible?
In general, such emergency wills are often declared in hospitals if the testator's state of health is particularly critical. In contrast to ordinary wills, the special feature of emergency wills is that they can be declared verbally.
In order to draw up an emergency will, the testator must have testamentary capacity. In addition, the testator must be in acute mortal danger, whereby it is not important for what reason their life is in danger.
In addition, three witnesses must be present to witness and confirm the declaration. These witnesses should be present throughout the entire process and record the last will and testament in writing.
Emergency wills are generally very prone to error and are therefore considered less secure and quickly contestable. It is therefore important to draw up a proper will as early as possible.
What types of emergency wills are there?
- Testament of necessity before three witnesses, § 2250 BGB
Firstly, the testator must be in a place that is cordoned off due to extraordinary circumstances in such a way that it is not possible or considerably more difficult to draw up a will before a notary.
There can be various reasons for these closures. Natural phenomena such as avalanches, landslides, floods and destruction of roads are possible reasons. Quarantine due to epidemics such as the coronavirus pandemic can also be considered as a reason.
With regard to the coronavirus pandemic, the Higher Regional Court of Düsseldorf ruled in its decision of 6 January 2022 that three witnesses must be present during the act of drawing up a will in accordance with Section 2250 (1) BGB. No exception to this provision is provided for, meaning that it is irrelevant that three witnesses cannot be present at the time of execution due to pandemic-related contact restrictions for patients in hospitals (para. 11; ref. no.: 3 Wx 216/21).
- Mayor's will, § 2249 BGB
If it is to be feared that the testator will die before being able to make a will before a notary. In addition to the option of making the will in front of three witnesses in accordance with Section 2250 (1) BGB, the testator has the option of making the will in the presence of the mayor of the municipality in which they reside. Here too, the mayor must call in two witnesses in accordance with Section 2249 Paragraph 1 Sentence 2 BGB. However, it is not possible to call as a witness anyone who is named in the will to be notarised or appointed as executor of the will.
- Maritime will, § 2251 BGB
During a sea voyage on board a German ship outside a domestic port, it is also possible to make a will verbally in front of three witnesses. The last will and testament must then be set out in writing. It should be noted that the same witnesses who were already involved in a three-witness will (see above) may not participate again in this case.
It is important to emphasise that, unlike an emergency will, no hardship is required for this type of will. However, according to the law, people who are only going on a short sports, pleasure or fishing trip and have the prospect of returning soon cannot make a will „at sea“.
How long is the emergency will valid for?
If the testator is still alive and has the opportunity to draw up a will before a notary within three months of making an emergency will, the effectiveness of the emergency will is cancelled retroactively in accordance with Section 2252 (1) BGB. This means that the emergency will is no longer valid and therefore no will drawn up previously can be cancelled retroactively. If the testator wishes to revoke an earlier will, a separate revocation is required.