The law prescribes a certain form for the establishment of wills. A will may be made by declaration to a notary or by a handwritten and signed declaration. In the case of a joint will, it is sufficient for one spouse to draft a handwritten will and both spouses to sign it.
In practice, however, it sometimes happens that the testator refers in his will to documents or annexes that are not handwritten. This was also the case in the recently published case of the German Federal Supreme Court (BGH), decision of 10 November 2021 (IV ZB 30/20):
The testator and his wife made a joint handwritten will, which they both signed. They named each other as sole inheritors and gave instructions for the succession after the last deceased. For example, the “Italia inheritance” should go to a “community of heirs consisting of 5 befriended families”. Names and addresses for the “Italia inheritance” were attached in a computer printout and personally signed. The will also expressly referred to this annex: “Names and addresses for the Italia share of the inheritance are attached in the computer printout which is personally signed”.
However, this was not sufficient for an effective co-heriship of the families named in the annex. The German Federal Supreme Court (BGH) rejected the application for a certificate of inheritance of one of the families – after the probate court had assessed the case differently.
In the case of references in a will, a distinction must be made between permissible references for the purpose of further explanation and impermissible references that supplement or determine the content (so-called testamentum mysticum). In this context, the German Federal Supreme Court (BGH) specifically criticised the sometimes too generous acceptance of references to annexes that are not in the proper form. The following applies in detail:
- First of all, it must be clarified whether the will, insofar as it is valid in form, is in itself sufficiently definite and thus complete.
- If this is not the case, it must be checked whether the will permits several interpretations.
- If the will permits several interpretations, it must be examined whether an interpretation resulting from the formally invalid annex has at least been expressed in the will in an indicated or hidden manner (so-called indication theory). For such an indication, however, it is not sufficient to refer – even expressly – to an annex. Rather, the content of the reference must at least be implied from the formally valid will.
In this specific case, the will should have indicated who exactly was behind the “5 befriended families”, for example by adding “with whom we always spent our summer holidays in Italy”.
- Without such an indication in the will itself which is valid in form, the will is void in this respect. Other testamentary dispositions made in the will remain valid provided that they comply with the form.
In contrast, a reference to another valid will is always effective.
When writing a will, it is important to avoid the question between (still) permissible reference and impermissible reference from the outset. If the will requires extensive annexes, this may argue in favour of a will made by declaration to a notary.
(7 February 2022)