Prerequisites for a nuncupative will

Faced with his imminent death, a testator is still able to prepare a nuncupative will, i.e. a will to which three persons are witnesses. However, this needs to satisfy strict conditions for it to be effective.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Testators do not always have the time to draft a valid will. In such instances where death is an imminent prospect, it is possible to prepare a nuncupative will, that is to say a will to which three persons are witnesses. However, as demonstrated by the Kammergericht Berlin’s (Higher Regional Court of Berlin) decision of December 29, 2015, a nuncupative will needs to meet strict requirements for it to be effective (Az.: 6 W 93/15).

In the instant case, a critically ill women wanted to appoint her friend as her sole heir. Owing to the fact that she was already very weak and virtually blind, she asked a doctor to draft the will for her. The doctor obliged and, after having read the will to the patient, he and a nurse signed the nuncupative will as witnesses. The woman died less than four weeks later.

Her friend subsequently applied for a certificate of inheritance. Pursuant to the probate court’s guidance that a nuncupative will requires signatures from three witnesses, an additional witness, who was present when the document was being drafted at the hospital bed, signed the will. Distant relatives of the testatrix nevertheless questioned the will’s effectiveness. The Kammergericht Berlin upheld their complaint.

It stated that the will’s invalidity was not due to the initially missing third signature; this could be added later under certain circumstances. That being said, it was not necessary to prepare a nuncupative will. Notwithstanding the testatrix’s poor physical condition, the Kammergericht held that her death had not been an imminent prospect and she therefore had had the option of drafting an ordinary will, e.g. one certified by a notary. The Court went on to say that a nuncupative will is only possible if death is an imminent prospect.

Consequently, the testatrix had failed to effectively declare her testamentary disposition and the rules of intestate succession took effect. In order to prevent this kind of outcome, one ought to give thought to preparing a will or contract of inheritance at an early stage. Lawyers who are experienced in the field of succession law can provide assistance with respect to all issues pertaining to inheritances.

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