Making a will under German law is quite a finicky task. The consequences of not having established a valid German will can be quite brutal. It is therefore extremely important to meet the particular form requirements.
First of all, a German will does not have to be witnessed. The particular form that is required under German law depends on the type of will. There are basically three different types of wills:
- private autographic wills
- public notarised wills
- emergency wills
Leaving aside the rare instance of an emergency wills, a valid German will requires either
- a hand written will that is dated, and signed by the will maker; or
- if the will is not hand written it must be notarised by a German notary.
A will-maker must be at least 16 years of age under German inheritance law.
Making a will under German law
Private autographic wills are by far the most common types of wills in Germany. In order to ascertain the identity of the will-maker, the will must be – in its entirety – handwritten. The handwritten will must also be signed by the will-maker. For instance, if a will-maker type writes a will and signs it, it will be declared invalid under German law. No court application will change that outcome. Yes, good old pen and paper are required to make a private will under German law.
From a common law perspective this outcome may seem harsh. It may also seem odd that under German law a private will does not require the will maker to sign the document in the presence of two witnesses. The authenticity of the testator’s last will is established through his or her handwriting.
Private wills can be easily revoked (unlike mutual wills). Private wills can be revoked at any time either partially or entirely by establishing a new will that complies with the particular form required. The destruction or changes to an existing will are equally considered to be a revocation of the earlier will.
Spouses that are married (verheiratet) or live in a civil union (eingetragene Lebenspartnerschaft) can establish mutual wills (either in private or public form). Only married or civil union couples can establish a mutual will (gemeinschaftliches Testament). Note that de facto relationships are not recognised under German law.
Caution needs to be exercised before setting up a mutual will because it cannot unilaterally be revoked with the same ease as private wills. There are also additional formal requirements to bear in mind when making a mutual will. The consequences of dissolution of marriage or civil union need to be considered as well.
A frequently used form of a mutual German will is the so-called Berliner Testament which allows spouses and civil union partners to appoint each other as heirs and after the death of both, their estate shall be inherited by a third party (usually the children).
Making a will under German law can be challenging and it is absolutely critical to meet the formal requirements. For instance, a will that is type written and signed by the will-maker is invalid. A will that is hand-written but not signed by the will-maker is invalid.
While German inheritance law contains specific rules regarding the interpretation of, an otherwise validly formed will, no such flexibility is applied when it comes to the validity of a will. An invalid German will trigger the rules of intestacy.