Such a testamentary disposition can be made either through a notarised inheritance agreement or by a will. A will can either be prepared by a notary or written privately by the deceased (a privately written will). A privately written will is formally valid if it is entirely handwritten by the testator (meaning every word must be personally written) and signed. The will should also include the date and place of signing.
In addition to various issues that can already arise from the prescribed form, privately written wills often suffer from classic substantive deficiencies, which a notarised will (ideally) does not.
The Case
The Higher Regional Court (OLG) of Hamm recently had to address some of these classic issues (Judgment dated 19 March 2025, I 10 W 40/25).
In this case, the testator, born on 22 April 1935 and deceased on 26 December 2023 at the age of 88, was unmarried and childless. She also had no siblings, and her parents had predeceased her. Her last will was a handwritten testament dated 12 September 2014.
The will included, among others, the following provisions:
“My cousin Christa inherits my house and land at Ringstraße 83, as well as my personal belongings, all household contents, and my car.
My house and land at Gartenstraße go to Ursula, born 20 July 1969, with the stipulation that it shall not be sold but instead passed on to one of her children, as it is the family home. Ursula also receives EUR 10,000.
My cousin Else receives EUR 20,000.
Anke shall receive EUR 20,000.
The sculpture ‘Europa’ shall be given to the JD Foundation.
The capital remaining after deduction of funeral expenses (coffin, fees, burial plot, grave decoration, headstone bearing my name, and grave maintenance for the entire burial period) shall also go to my cousin Christa.”
Cousin Christa, who was two years younger than the testator, died on 7 July 2023, half a year before the testator. Now, Christa’s three children and Ursula were in dispute over who inherited the estate and in what proportions.
Appointment of the Heir(s)
The first classic problem here is that the will did not clearly designate who was to inherit. According to Section 1922 of the German Civil Code (BGB), an inheritance passes as a whole to one or more persons (by fractional shares). This means it is generally not possible (apart from very few exceptions) to assign specific objects directly to individual beneficiaries upon death. Section 2087 (2) BGB even specifies that the bequest of particular objects is not presumed to constitute appointment as heir.
Applied to the will described above, this means that although the testator wished to allocate her properties directly to Christa and Ursula, legally, upon the testator’s death, the heir or heirs first stepped into the legal position of the deceased and became owners of the properties. In this case, however, the testator had not specified whether Christa or Ursula should be her sole heirs or heirs according to fractional shares.
In such unclear or possibly contradictory cases, the will must be interpreted. Interpretation means investigating the true intention of the deceased at the time the will was made.
The difficulty inherent in almost every interpretation of a will is obvious: the testator is deceased and can no longer clarify what they thought or intended when drafting the will.
The starting point for interpretation must always be the wording of the will. Here, the testator used the word “inherits” twice in relation to Christa and Ursula, suggesting that both were intended to be her legal heirs. Moreover, for Christa, the testator explicitly stated under item 6 that Christa was also to receive all other personal possessions, clearly indicating that she viewed Christa as her legal successor.
Conversely, the testator used the term “receives” for Else and Anke and “shall be given” in relation to the foundation. This difference in wording strongly suggests that Else, Anke, and the foundation were not intended as heirs.
Consequently, the OLG concluded that the testator intended Christa and Ursula as her heirs.
Lack of Provision for the Event of a Predeceased Heir
However, the testator incorporated another classic issue into her will: Although she was already 79 when making the will and Christa was 77 at that time, the testator failed to determine what should happen if Christa died either before or after the testator.
One might object that neglecting such a possibility at ages 77 and 79 is grossly negligent, and this would be difficult to dispute. However, such omission of substitute heirs regularly occurs when parents appoint their children as heirs without considering that the children could predecease them due to accident or illness.
In this particular case, the OLG thus had to address whether the appointment of Christa as heir implied that, in the event of her predecease, her descendants should take her place as heirs.
If someone appoints their descendant as heir in a will, Section 2069 BGB states that, in case that descendant dies first, their own children (the testator’s grandchildren) will inherit instead.
However, the wording of this provision explicitly applies only to descendants, and therefore it could not be applied (even by analogy) in this case. Thus, the will had to be interpreted again. Given that Christa’s children also had a good relationship with the testator, and especially since the testator had considered Christa from her paternal line and Ursula from her maternal line when distributing her main assets, the OLG concluded that Christa represented her line. The OLG further assumed—as mentioned previously—that a testator should anticipate the possibility that a beneficiary close to their age might predecease them.
The OLG ultimately decided that the heirs to the testator’s estate were Ursula and Christa’s three children in a community of heirs.
Conclusion
The case and the court’s decision demonstrate that even with relatively simple estates and clear testamentary intentions, problems can arise when drafting privately written wills. A layperson typically does not understand the principle of universal succession or the precise legal terminology (heir, legacy, obligation, etc.) necessary to accurately reflect their wishes. This commonly results in ambiguities that can only be resolved through costly and time-consuming court proceedings.
Therefore, it is always advisable to seek legal advice (from a solicitor specialising in inheritance law or a notary) when preparing a will. Although this will incur costs, they are significantly lower than those arising from potential court proceedings. Additionally, a notarised will generally has the same legal effect as a certificate of inheritance (Erbschein), which must otherwise be applied for if only a privately written will exists, thereby incurring further costs.