Testamentary capacity of the testator
Making a will has far-reaching consequences for the testator and their heirs. Accordingly, it is necessary for the testator to be aware of these consequences and to be able to understand what he or she is instructing in the will.
What does testamentary capacity mean?
A person's testamentary capacity is set out in Section 2229 BGB. According to Section 2229 (1) BGB, a minor can only make a will once they have reached the age of 16. Pursuant to Section 2229 (2) BGB, a minor testator does not require the consent of their legal representative to make a will. However, a minor is only considered to have limited testamentary capacity and can only make a testamentary disposition by means of a notarised will.
In order to draw up a will, it is imperative that the testator is in full possession of his or her mental capacity and is able to understand both the meaning of a will and the rights and obligations associated with it.
It is also possible for persons under legal guardianship to make a will and write down their last wishes without the consent of the guardian.
In the case of testamentary capacity, a person is also entitled to testamentary freedom. Testamentary capacity influences the validity of a will, while testamentary freedom concerns the unrestricted organisation of the content. In this case, a testator has the freedom to organise their last will and testament according to their own wishes, allowing them to determine both their heirs and any conditions independently. They are therefore not bound by statutory provisions and have the option of disinheriting relatives, even if they would actually be entitled to inherit according to the statutory order of succession. Nevertheless, in the event of disinheritance, they have the right to claim a compulsory portion in most situations.
When does testamentary incapacity exist?
Pursuant to Section 2229 (4), a person may not make a will if he or she is unable to understand the meaning of a declaration of intent made by him or her and to act in accordance with this understanding due to a pathological mental disorder, mental deficiency or impaired consciousness.
In practice, testamentary capacity is a particularly frequent focus in the case of assisted persons, dementia and mental disorders. Nevertheless, an individual assessment is always required to determine whether a person has testamentary capacity or not.
1.testamentary capacity and dementia
In view of increasing life expectancy and the fact that many people only draw up a will at an advanced age, the question arises in numerous inheritance cases as to whether a testator has limited testamentary capacity due to dementia. Experience with dementia and its influence on cognitive capacity has shown that the testamentary capacity of a person affected can only be assessed on the basis of their overall behaviour and personality at the time of making a will.
The effects of dementia on testamentary capacity must be clarified in two steps. Firstly, the medical diagnosis of the illness that could lead to testamentary incapacity must be made. Next, it must be determined whether this illness has impaired the mental abilities of the person concerned at the time the will is drawn up to such an extent that it can be assumed that they lack testamentary capacity. This impairment of testamentary capacity can only be determined by examining external characteristics at the time the will is drawn up. The following criteria are regularly used here:
- Temporal and spatial orientation of the affected person
- Balanced mood of the affected person
- Self-determined exercise of mental and physical activities
- Quality of interpersonal relationships
- Ability to provide for themselves (nutrition, hygiene, etc.)
- Condition and design of the personal living space of the person concerned
2. mental disorders
The use of alcohol, drugs or medication can also lead to the person concerned being considered incapable of making a will.
Depending on the quantity, the consumption of such substances can lead to impaired consciousness, other cognitive abilities and perception.
Both the intake and withdrawal of such substances can lead to a condition that precludes testamentary capacity.
Incapacity to make a will can also be assumed if the testator has been diagnosed with mental disorders such as schizophrenia. Schizophrenia manifests itself in the affected person through a fundamental impairment of thinking and perception. Those affected often cherish the belief that their innermost feelings and thoughts can be recognised by other people. Schizophrenia is characterised by strange and inappropriate behaviour on the part of the person affected.
Bipolar disorder can also be a reason for a testator's incapacity to make a will. Bipolar affective disorder is a disorder characterised by recurring episodes in which the mood and activity level of the person affected are impaired. Phases of elevated mood alternate with depressive states. These episodes typically begin suddenly and can last for several weeks or even months.
What do I do if I have doubts about the testator's testamentary capacity?
If the testator's testamentary incapacity is proven, this leads to the invalidity of the will. If there are doubts about the testator's testamentary capacity, the burden of proof lies with the person claiming incapacity.
In order to substantiate and, if necessary, prove the claim of testamentary incapacity, those who express such doubts must first present objectively verifiable facts or circumstantial evidence (e.g. conspicuous, symptomatic behaviour). If necessary, it is their duty to substantiate these in a comprehensible manner and, if necessary, to provide evidence.
For this purpose, the party concerned must support the uncertainties cited with regard to testamentary capacity by, for example, submitting medical documents or naming the doctors providing treatment.
If, on the other hand, there are only assumptions or hypothetical conclusions that are not based on verifiable, case-related facts or circumstantial evidence, there is no obligation for the court to conduct an independent investigation.
However, if the allegations are based on objective facts or circumstantial evidence, it is for the court to clarify the medical condition and review the conclusions to be drawn from these circumstances.
How is it determined?
Usually, an expert in the form of a psychiatrist or neurologist is commissioned to draw up an expert opinion on testamentary capacity. Specialists from other medical fields can also be included as witnesses in the report. Nevertheless, a medical report alone does not conclusively determine the question of testamentary capacity. Ultimately, the final decision on testamentary capacity or incapacity lies with the competent probate court. The medical report can influence the decision, but cannot finalise it.
As a rule, the probate court examines a case if there are doubts about the testamentary capacity of a deceased testator. In such cases, the court may call in an expert to investigate possible testamentary incapacity. The expert will first establish whether the testator suffered from an illness and then check whether this illness affected his or her ability to form a free will. The court will then make its decision based on the expert's opinion and may consider both the medical report and witness statements about the testator's behaviour.
The testator's medical records could also be included in the examination. It should be noted, however, that this judicial assessment cannot be carried out during the testator's lifetime, which is why it is often difficult to verify testamentary capacity if no medical reports were available at the time the will was drawn up.
Who bears the risk for the lack of testamentary capacity?
In its judgement of 26 April 2022, the Higher Regional Court of Celle ruled that the heir appointed by the will bears the risk for the invalidity of the will in the event of the testator's incapacity to make a will. This means that the supposed heir must hand over all estate items to the true heirs, even if many years have passed since the testator's death.