Emergency Wills - Admissibility and Implications of the Corona Pandemic
Drawing up a will can be a time-consuming undertaking. However, not every testator who wishes to draw up a will has this time available due to a particularly dangerous situation or their imminent death. In special situations, the law offers the possibility of drawing up a so-called emergency will.
Under what conditions is an emergency will permissible?
Overall, such emergency wills are often declared in hospitals when 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 orally.
In order to draw up an emergency will, it is generally necessary for the testator to have testamentary capacity. In addition, he must be in acute danger of death, whereby it is not important for what reason he is in danger of death.
In addition, three witnesses must be present to witness and confirm the declaration. These witnesses should be present throughout the process and record the last will and testament in writing.
Emergency wills are usually very prone to errors and are therefore considered less secure and quickly contestable. Therefore, if possible, it is important to make a proper will as early as possible.
What types of emergency wills are there?
- Emergency will before three witnesses, § 2250 BGB
First of all, the testator must be in a place which, as a result of extraordinary circumstances, is cordoned off in such a way that it is impossible or considerably more difficult to draw up a will before a notary.
There may be various reasons for this cordoning off. Natural events such as avalanches, landslides, floods and destruction of roads may be considered as reasons. In addition, quarantine due to epidemics such as the Corona pandemic can also be considered as a reason.
With regard to the Corona pandemic, the Düsseldorf Higher Regional Court ruled in its decision of Jan. 6, 2022, that for an emergency will to be executed in accordance with Section 2250 (1) of the German Civil Code, it is a mandatory requirement that three witnesses be present during the act of execution. There is no exception to this rule, so that it is irrelevant that at the time of the establishment pandemic-related contact restrictions for patients in hospitals no three witnesses can be present (marginal no. 11; acc.: 3 Wx 216/21).
- Mayor's will, § 2249 BGB
If it is to be feared that the testator will die before he can make a will before a notary. In addition to the option of making the will before three witnesses in accordance with Section 2250 (1) of the Civil Code, he has the option of making the will for the record of the mayor of the municipality in which he resides. Here, too, the mayor must call two witnesses in accordance with section 2249(1) sentence 2 of the Civil Code. However, no witness may be called who is included in the will to be recorded or who is appointed 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 orally in front of three witnesses. Subsequently, the last will and testament must be put down in writing. It should be noted that the same witnesses who have already participated in a three-witness will (see above) may not participate again in this case.
It is important to emphasize that, unlike an emergency will, no hardship is required for this type of will. However, according to the law, persons who are merely engaged in a short sporting, pleasure or fishing trip, with the prospect of returning soon, cannot make a will "at sea."
How long is the emergency will valid?
Provided that the testator is still alive and has the opportunity to draw up a will before a notary within three months of the creation of an emergency will, the validity of the emergency will is revoked retroactively in accordance with Section 2252 (1) of the German Civil Code. This means that the emergency will no longer has any validity and consequently cannot retroactively annul any previously made will. If the testator wishes to revoke an earlier will, a separate revocation is required.