Testamentary Capacity of the Testator

Creating a will has significant implications for both the testator and their heirs. Consequently, it is necessary for the testator to be aware of these implications and to comprehend the content of the will.


What is testamentary capacity?

The concept of testamentary capacity is outlined in § 2229 of the German Civil Code (BGB). According to § 2229 (1) BGB, a minor can only create a will once they have reached the age of 16. For the creation of a will, a minor testator does not require the consent of their legal representative according to § 2229 (2) BGB. However, a minor is considered to have limited testamentary capacity and can only establish a testamentary disposition through a notarial will.

It is essential for the testator to be in full possession of their mental faculties and capable of understanding both the significance of a will and the rights and obligations associated with it in order to create a valid will.

It is also possible for individuals under legal guardianship to have testamentary capacity and draft their last will without the guardian's consent. However, individuals suffering from mental disorders, intellectual weakness, or impaired consciousness are not considered to have testamentary capacity.

In the case of testamentary capacity, the person is also entitled to testamentary freedom. While testamentary capacity influences the validity of a will, testamentary freedom pertains to the unrestricted content of the will. The testator has the freedom to structure their testamentary provisions according to their own desires, which allows them to determine their heirs and any potential conditions autonomously. As a result, they are not bound by statutory provisions and can disinherit family members even if they would be entitled to inherit according to legal succession rules. Nevertheless, these disinherited individuals typically retain the right to claim a compulsory portion.


When does testamentary incapacity exist?

According to § 2229 (4) BGB, someone cannot create a will if they are not capable of understanding the meaning of their declaration of intent and acting in accordance with this understanding due to a mental disorder, intellectual weakness, or impairment of consciousness.

In practice, testamentary capacity is often a focal point in cases involving individuals under guardianship, dementia, and mental disorders. However, an individual assessment is always necessary to determine whether a person has testamentary capacity.


1. Testamentary Capacity and Dementia

Given the increasing life expectancy and the fact that many people only draft a will in later life, the question arises in many inheritance cases whether a testator is restricted in testamentary capacity due to dementia. Experience with dementia and its impact on cognitive function has shown that assessing the testamentary capacity of an affected individual can only be done based on their overall behavior and personality at the time of creating the will.

The effects of dementia on testamentary capacity need to be clarified in two steps. Firstly, a medical diagnosis of the condition that could lead to testamentary incapacity needs to be established. Secondly, it needs to be determined whether this condition has impaired the mental faculties of the individual to such an extent at the time of creating the will that testamentary incapacity can be presumed. This impairment of testamentary capacity can only be determined by examining external characteristics at the time the will is created. The following criteria are typically considered:

Temporal and spatial orientation of the individual Balanced mood of the individual Independent exercise of mental and physical activities Quality of interpersonal relationships Ability for self-care (nutrition, hygiene, etc.) Condition and arrangement of the individual's personal living space Individuals affected by dementia experience moments of temporary clarity and mental capacity, during which they are considered to have testamentary capacity.


2. Mental Disorders

The consumption of alcohol, drugs, or medication can also lead to a person being considered incapable of making a will.

Depending on the quantity, the consumption of such substances can lead to impairments of consciousness, other cognitive abilities, and perception.

Both the consumption and withdrawal of such substances can result in a state that excludes testamentary capacity.

Testamentary incapacity is also assumed when mental disorders such as schizophrenia have been diagnosed in the testator. Schizophrenia manifests in the individual through a fundamental impairment of thinking and perception. Often, those affected believe that their innermost feelings and thoughts can be recognized by others. Characteristic behaviors of those affected by schizophrenia are peculiar and inappropriate.

Bipolar disorders can also warrant testamentary incapacity of a testator. Bipolar affective disorder is characterized by recurring episodes in which the mood and activity level of the individual 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 to do when there are doubts about the testator's testamentary capacity?

If testamentary incapacity has been proven, the will becomes void. If there are doubts about testamentary capacity, the burden of proof lies with the person alleging testamentary incapacity.

In order to substantiate and potentially prove the claim of testamentary incapacity, those raising such doubts must initially present objectively verifiable facts or indications (e.g., conspicuous symptomatic behavior). If necessary, it is their duty to substantiate and, if possible, prove these claims.

For this purpose, the party should support the stated uncertainties regarding testamentary capacity by presenting, for example, medical records or naming the treating physicians.

If, on the other hand, only assumptions or hypothetical conclusions exist that are not based on verifiable, case-specific facts or indications, there is no obligation for the court to conduct an independent examination.

However, if the claims are based on objective facts or indications, the court is responsible for clarifying the medical condition and examining the conclusions derived from these circumstances.


How is testamentary capacity established?

Usually, an expert in the form of a psychiatrist or neurologist is commissioned to create an expert opinion on testamentary capacity. Additionally, specialists from other medical fields can also be included as witnesses in the expert opinion. However, a medical expert opinion alone does not conclusively determine the question of testamentary capacity. Ultimately, the final decision regarding testamentary capacity or incapacity rests with the competent probate court. The medical expert opinion can influence the decision but not definitively establish it.

In most cases, the probate court examines a case when doubts arise about the testamentary capacity of a deceased testator. In such cases, the court may involve an expert to investigate potential testamentary incapacity. The expert will first determine whether the testator suffered from an illness that could lead to testamentary incapacity and then assess whether this illness affected their capacity for free will. The court will then make its decision based on the expert's opinion and may consider both the medical expert opinion and witness statements about the behavior of the testator.

The medical records of the testator could also be included in the examination. However, it should be noted that this court assessment cannot take place during the testator's lifetime, making it often challenging to assess testamentary capacity if medical expert opinions were not available at the time the will was created.


Who bears the risk of lacking testamentary capacity?

In its ruling of April 26, 2022, the Higher Regional Court of Celle (OLG Celle) decided that the heir appointed by the will bears the risk of the will's invalidity in the event of testamentary incapacity of the testator. This means that the supposed heir must return all estate assets to the legal heirs, even if many years have passed since the inheritance occurred.