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Testability

Preliminary remark

The reservation of consent may not be extended to dispositions due to death (Section 1903 (2) BGB). The supervised person can therefore draw up wills and contracts of inheritance at his own discretion; he does not need to ask the supervisor. For details see Hahn FamRZ 1991, 27.

testament

Establishment

A will is a determination of what will become of the property of the deceased after death. The right to determination beyond death is derived from the basic right to property (Article 14 of the Basic Law).

A reservation of consent is not possible for such a disposition due to death (will = last will), so, unlike in the previous guardianship law (before 1992), people for whom a guardian has been appointed can generally draw up a will.

However, § 2229 Paragraph 3 BGB states that a person who, due to mental disorders, is unable to recognize the meaning of a declaration of intent and can act accordingly, cannot draw up a will (see also § 104 Paragraph 2 BGB). Such a mental limitation removes the testamentary ability when the testator can no longer recognize the scope of his decisions and form and express his will free of the influence of third parties. Inability to testify is a special form of legal incapacity (BayObLG FamRZ 2005, 2019 = NJW-RR 2005, 1025 = ZEV 2005, 345).

The probate court (§ 72 FGG) must examine ex officio whether such an incapacity to make a will is present when issuing the certificate of inheritance (§§ 12 FGG; 2353, 2358 BGB) if there are concrete doubts about the testability. The fact that a supervisor was appointed does not in itself prove the inability to testify (BayObLG 1982, 309 on frailty care). In the event of such doubts, the probate court must first clarify the alleged conspicuous behavior of the testator (i.e. the person being looked after) (e.g. the extent of the cerebral sclerosis, the confusion) and then obtain the expert opinion of a psychiatrist (OLG Hamm Rpfleger 1989, 23). The expert opinion that was previously created when the supervisor was appointed will, under certain circumstances, provide the new expert with valuable help.

According to § 11 I Clause 1 BeurkG, the notary should refuse the notarization if one of the parties involved lacks the necessary testability in the opinion of the notary. If there is any doubt, the notary should state this in writing in accordance with Section 11 Paragraph 1 Clause 2, Section 28 BeurkG. However, this does not mean that the notary can positively determine the testability. As a medical layperson, he already lacks the necessary expertise (BayObLG, 1Z BR 053/04). The notary has no final decision-making authority with regard to the question of the testability.

Official safekeeping of a will

Notarial wills are given by the notary in official custody at the district court. Handwritten wills can also be placed there for safekeeping. This can also be arranged by a supervisor or (preventive) agent, according to the Munich Higher Regional Court. A fee of € 75 (plus € 18 for registration in the central will register) must be paid for safekeeping.

Jurisprudence:

OLG Munich, decision of June 25, 2012, 31 Wx 213/12, DNotZ 2012, 868 = FamRZ 2013, 156 = MDR 2012, 1295 = NJW-RR 2012, 1288 = Rpfleger 2012, 693:

The law only requires that the custody must take place at the request of the (future) testator (§ 2248 BGB). However, it is not required that the safekeeping has to take place (very) personally. As a result, a substitute is therefore possible. The granting of the power of attorney is an effective authorization for representation.

Revocation of the will

The supervised person who is capable of making a testament can effectively revoke his will at any time, but not of the person who is unable to make a testimony. If the supervised person who is incapable of making a will destroys his will by throwing it away, it remains valid; another question is how the making of the will can then be proven.

Review during the testator's lifetime

It is not uncommon for a dispute to break out after the inheritance among the persons eligible as heirs over the question of whether the testator was still able to recognize the scope of his disposition at the time the will was drawn up. This is especially true if the testator changes his will shortly before his death and thus diminishes or completely curtails existing prospects of inheritance. The person concerned usually argues that the last-minute beneficiary has shamelessly exploited the decaying mental strength of the testator to his advantage. It is then difficult to prove in retrospect that the testator was no longer able to testify and that his last disposition is therefore ineffective. Particularly resourceful potential heirs therefore try to secure the evidence in their favor even before the deceased dies.

So it was in the case of two brothers. One was childless and made a will in which he made the daughter of his late wife the heiress. The other brother, who would be the legal heir without a will, applied to the probate court to obtain an opinion on the brother's ability to testify by way of preserving evidence. He hoped to be able to prove that the brother was no longer able to testify, which would have secured his inheritance. Not so, found the Higher Regional Court of Frankfurt (decision of January 27, 1997 - 20 W 21/97). The testator's interest, recognized by the principle of testability, of not having to give an account of the fate of his later estate during his lifetime and not having to be tried to death by the potential heir, should be valued more highly than any kind of interest of the potential heirs future participants in the estate. The request to obtain an expert opinion is therefore not admissible.

Disorders of the testamentary ability

Passed heirs often assert the objection that the testator was unable to make a will due to a mental disorder, and that the will that is disadvantageous to them is therefore invalid. Basically: Everyone is either capable of or incapable of making a testimony. In contrast to limited legal capacity, there is no limited testability. The ability to testify is essentially linked to the minimum age of 16 years and the absence of certain physical and mental disorders.

Factual inability to testify

There is a factual inability to make a will if a person who is otherwise capable of making a will cannot express himself or herself in the language and script prescribed by law and, for this reason, cannot draw up a will. This is the case, for example, if the testator can neither read, write nor speak. According to Section 2247 Paragraph 4 BGB, Section 2233 Paragraph 2 and 3 BGB, all forms of will are blocked; be it the handwritten will or the notarial will in the form of an oral declaration or by handing over a written document.

Note: According to the decision of the Federal Constitutional Court of 19.01.1999, BVerfGE 99, 34 = NJW 1999, 1853 = DNotZ 1999, 409, however, the general exclusion of persons unable to write and speak from the testability is unconstitutional, provided that a reliable communication with the Testator is possible (e.g. sign language with the help of a trusted person).

Disruptions in accordance with § 2229 Paragraph 4 BGB

Inability to testify in accordance with Section 2229 (4) of the German Civil Code (BGB) exists if the testator cannot recognize due to a pathological disorder of mental activity, mental weakness or impaired consciousness

  • that he draws up a will and what its content is,
  • the scope of his orders with regard to the personal and economic circumstances of the persons concerned (heirs, legatees, disinherited persons, etc.),
  • what reasons speak for and against the moral justification of the order
  • cannot form his will free from the influence of third parties.

Relative and partial inability to testify

Through the theories of relative or partial testamentary incapacity, attempts have been made in the literature to break the principle of "all or not at all" which applies to testability.

According to the theory of relative testability, the testator may have the testability necessary to draw up a simple will, while he lacks the testability for a complex will (e.g. Dittmann-Bengel-Reimann § 2229 BGB, margin no.12). This view would lead to considerable difficulties in providing evidence in the process and is rejected by the ruling and the prevailing doctrine (BGH of May 13, 1959, BGHZ 30, 113, 117; Staudinger-Baumann § 2229 BGB, margin no. 12).

The so-called partial inability to testify is also to be rejected (BayObLG of January 31, 1991, NJW 1992, 248). Pathological disorders of mental activity occasionally occur only in certain areas of life or with regard to certain people. If this results in an incapacity to make a will, this can only refer generally to the drawing up of wills, not just to part of the will or to wills with a specific content. In these cases, too, the ability to testify is either entirely or not at all. In practice, however, the delimitation is difficult

Third party influence

The testator must not be so dependent on the influence of third parties (e.g. the supervisor or a caregiver) that he is no longer able to form a free will due to pathological disorders of mental activity, mental weakness or a disorder of consciousness. Here, too, it is difficult to differentiate between individual cases. In practice, however, it depends on this whether a testamentary disposition is null and void or can only be challenged.

Inability to testify due to mental impairment

Whether a last will is ineffective essentially depends on three variants of prerequisites, the substantive, the medical and the procedural.

Legal requirements

When assessing the question of whether the testator is incapable of making a will in accordance with Section 2249 (4) BGB, the decisive question is whether the testator is unable to form a free will and to act accordingly due to a mental disorder. Three prerequisites must be met at the same time in order to be unable to make a will:

  • Pathological disorder of mental activity or mental weakness or impaired consciousness,
  • Inability to understand the meaning of the declaration of will (cognitive element) and to act on this insight (voluntative element),
  • Causality, i.e. the lack of insight and the lack of freedom to determine the will, must be based on the mental disturbance.

Whether the criteria are met is a legal question for which medical findings are of great importance, but ultimately not decisive (Dittmann-Bengel-Reimann, § 2229 BGB margin no. 11). The court is therefore not bound by the assessment of an expert (BayObLG of March 27, 1986, FamRZ 1985, 742, 743).

Medical requirements

The pathological disorder of the mental activity and the mental weakness differ only gradually, i.e. the mental weakness is a minor disorder of the mental activity (Staudinger-Baumann, § 2229 margin no. 17). By its nature, however, the mental weakness is usually permanent, while the pathological disturbance of the mental activity can be temporary.

Procedural requirements

If there are doubts about the ability to testify, the following procedural points must be observed.

Defense against doubts about the testability

If the validity of the will is doubted because of the alleged incapacity to make a will, the appointed heir can sue for his right of inheritance to be established (Section 256 ZPO). The fact that the right of inheritance is normally demonstrated to banks and the land registry by submitting the certificate of inheritance does not conflict with the required determination. Inadmissible, however, is the declaratory action by third parties who want to have the testator's ability or inability to testify determined while the testator is still alive. Independent evidence proceedings with this content are also inadmissible. Because the mere factual prospect of becoming an heir is not yet a legal position worthy of protection, and the interest of the future testator to be spared from such lawsuits is paramount (OLG Frankfurt / Main of January 30, 1997, NJW-RR 1997, 581).

Probate Court doubts

The locally competent probate court decides on the issue of the certificate of inheritance in the procedure of voluntary jurisdiction (§ 2353 BGB, §§ 72 ff. FGG). The decision of the court can be reviewed by the LG as a court of appeal and by the Higher Regional Court as the court of further appeal (§§ 19, 27, 28 FGG). According to § 2358 BGB, § 12 FGG, § 15 FGG, the probate court has to conduct the necessary investigations ex officio and to collect the evidence that appears appropriate. The type and scope of the investigation are based on the requirements of the individual case, whereby the judge is not bound by the presentation and the evidence offered by the parties. Since the ability to make a will is the rule and the inability to make a will the exception, only specific indications of the inability to make a will need to be investigated:

In a case decided by the Higher Regional Court of Hamm on November 12, 1996, FamRZ 1997, 1026, the general assertion that the testator had taken strong medication was not sufficient to raise concrete doubts about the testability. The court did not have to initiate any further investigations based on these allegations.

Principles for the treatment of expert opinions

As long as the inability to make a will is not established to the full conviction of the court, the ability to make a will must be assumed as a rule. If, on the basis of its evidence, the court comes to the conclusion that not enough concrete facts arguing for an incapacity to make a will have been proven, it does not have to commission an expert. On the basis of one's own expertise, it can be assumed that the person is able to testify (Bay0bLG of 05.07.1990, NJW-RR 1990, 1419, 1420).

Conversely, the inability to make a will can only be determined on the basis of an expert opinion. The expert to be appointed by the court must be a neurologist or psychiatrist (BayObLG of July 5, 1990, NJW-RR 1990, 1419). The court can deviate from the expert's assessment, but must carefully consider the expert's opinion. Contradicting reports do not automatically compel the commissioning of a top report. According to the court's dutiful discretion, this is only to be obtained in particularly difficult cases, serious deficiencies in the report or superior research resources from the senior expert.

If objections are raised in a private report to the report of the court-appointed expert, the court must investigate these and, if necessary, clarify the matter further. It can request the expert to supplement his report in writing, invite him to further oral questioning or obtain an additional report. The court decides according to its due discretion (OLG Frankfurt / Main of December 22nd, 1997, NJW-RR 1998, 870).

Undated will

The undated will is a special case. If the testator's inability to make a will is established at any point in time, but not when he made the will, this is to be regarded as ineffective according to Section 2247 (5) of the German Civil Code (BayObLG of April 11, 1996, NJW-RR 1996, 1160, 1161).

The subsequent determination of the testator's inability to make a will is often very difficult. Particular problems arise if it is not certain when the will was drawn up and the testator was subject to considerable fluctuations in health.

According to the unanimous opinion in specialist literature and jurisprudence, the person who invokes the invalidity of the will bears the burden of establishing that the testator is incapable of making a will. When assessing the ability to make a will, only the time at which the will was drawn up is important. It does not matter whether the testator was able to testify before or after the relevant point in time, as is often the case with dementia patients in particular.

However, if the will (exceptionally) is not dated and cannot be dated due to other circumstances, the burden of establishing that the testator was able to testify at the time the will was drawn up lies with the person who claims rights from the will if it is certain that the testator is was incapable of making a will at any point in time during the period in question when drawing up a will (OLG Jena FamRZ 2005, 2021 = NJW-RR 2005, 1247 = ZEV 2005, 343).

Clinical pictures impairing the testability

1. Dementias are the result of brain diseases (e.g. Alzheimer's, vascular disease, Creutzfeld-Jakob, Parkinson, AIDS, etc.) that negatively affect memory, thinking, orientation, perception, arithmetic, the ability to learn, language and judgment. In certain forms, the cognitive deficits are often uneven. Insight and judgment can be quite well preserved. In rare cases, the question of what is known as a lucid interval, i.e.a temporary state of mental clarity (and testability) despite predominant dementia impairment. The burden of determination falls on those who claim it (BayObLG of February 13, 1990, FamRZ 1990, 801). In the case of moderate and severe dementia, the inability to testify is generally assumed. Mild forms of dementia can lead to an inability to testify if the symptoms are also accompanied by delusional symptoms, especially if these relate to the inheritance or those involved in it (e.g. exclusion of an heir due to jealousy or paranoia).

2. Organically caused mental disorders are based on a brain dysfunction (e.g. epilepsy, brain injuries). Depending on the extent of the organically caused restrictions, the ability to testify may be suspended in the case of organically caused psychological disorders. Chronic organically caused psychological disorders such as the "change of character" of an epileptic or the affective-unstable, slightly quick-tempered nature of a person with traumatic brain injury usually do not result in an inability to testify.

3. The values ​​determined in psychological tests (intelligence quotient IQ) only provide clues for a reduced intelligence, which must be supplemented by the overall assessment of the person concerned and their abilities. People with a slight intellectual disability (IQ 50-69), in addition to which the terms “nonsense” and “debility” are used, usually achieve full independence in everyday life and self-sufficiency and can, despite school problems with reading and writing, a semi-skilled person To do your job. They will usually be able to testify (unless there are additional disorders such as autism). Even with moderate intellectual disabilities (IQ 35-49), careful examination standards must be applied to the ability to look into and act according to declarations of will and the ability to testify. Severe (IQ 20-34) and most severe (IQ below 20) intellectual deficits exclude the ability to testify.

4. Schizophrenic psychoses: Sufferers believe that their thoughts, actions and feelings are known to others and are being controlled by foreign powers. Clarity of consciousness and intellectual abilities are usually not affected. Under the influence of acute delusional symptoms and hallucinations, a free determination of will and thus also the ability to testify is excluded. After the acute symptoms have subsided, it may be possible to testify in exceptional cases. If delusions are the most conspicuous or only symptom, while affect, language, behavior and thinking are inconspicuous apart from actions relating to the delusion or the delusional system, testamentary ability can usually be assumed. Exceptions exist if the delusion or the delusional system relates to the inheritance or persons involved in the inheritance, because then there may be a delusional restriction of free will. For example, if a testator disinherits his entire family because, in his delusion, he accuses them of murdering his deceased wife for no reason, then from a medical point of view there is a pathological disorder of the mental activity that is contrary to the freedom of will. In contrast, the current case law does not see any reason for the assumption of inability to testify in "pathological feelings of hatred" among siblings (Bay0bLG NJW 1992,248), although the "psychopathy term" used here cannot be brought into line with the current psychiatric classification and diagnosis (see below) .

5. Manic-depressive states (affective disorders): During manic or depressive phases, the mood of those affected is inappropriately elevated or depressed, which is reflected in their behavior. Depending on the severity of the symptoms, the inability to test can exist in both manic and depressive phases when manic expansiveness or depressive constriction overrides the free determination of will.

6. Addiction and addiction disorders do not in themselves give rise to any doubts about the ability of those affected to testify, but not if the addiction disorder (e.g. chronic alcoholism) has led to organic brain changes (see section 2 above). The inability to testify also exists in the context of acute intoxication and intoxication states, which, however, are by their nature temporary.

7. Abnormal personalities, troublemakers, psychopaths: These terms have been abandoned in favor of a more differentiated description of personality and behavioral disorders. In contrast to schizophrenic psychoses, the symptoms are limited to the disturbed area of ​​the personality and to areas directly or indirectly connected with it. Thinking, feeling, wanting, perceiving and acting are not affected at the same time. As a rule, there are no restrictions on the ability to testify.

Inheritance contract

The legally competent guardian can conclude inheritance contracts (Section 2275 (1) BGB); for this he does not need the consent of the supervisor or the approval of the supervisory court. However, an inheritance contract must be concluded in front of a notary (§ 2276 BGB). The notary should convince himself of the legal capacity of the participant before a notarization (e.g. by having a detailed discussion with him) and note this in the deed (§ 11, § 28 BeurkG). This notary notice is not binding; Even if the notary considered the testator to be able to testify, an expert report can prove the opposite. In practice, however, this is seldom the case because the notary's testimony contradicts this. Anyone who is to be appointed as an heir by a person under care would do well to ask the person under care not to make the will in private writing, but to draw up the will with the notary; It is even better for the heiree if a contract of inheritance is concluded with him because the contract is irrevocable.

BGH, decision of January 27, 2021 - XII ZB 450/20

  1. The fact that the other contracting party has become legally incapable of doing so does not exclude the contractually reserved withdrawal from the inheritance contract towards him.
  2. Withdrawal from the inheritance contract can in any case be effective against his or her authorized representative if the other contracting party is incapable of doing business.

From the case law:

Higher Regional Court Frankfurt / Main, Decision of 05.09.1995, 20 W 107/94, FamRZ 1995, 635

  1. The appointment of a supervisor with the task of determining residence and property management does not, as a rule, affect the person's ability to testify.
  2. From the testamentary freedom fundamentally guaranteed by the law, it also follows that a testator does not have to justify his testamentary dispositions on the basis of reasonable reasons that can be understood by third parties.

FACT: A testator had drawn up her will with the date 08/01/1988. Various people had doubts about the testator's ability to testify from the testator's statements and behavior in the years 1985-1987. The district court did not act in an erroneous manner in view of the fact that it considered the objections presented to be too general and too little timely in the will of 08/01/1988.

The district court was aware that the testator had concluded a notarial contract in 1987, especially with regard to the expert opinion of May 26, 1993, which was deemed convincing by the district court and which did not even deal with the processes that led to the establishment of a frail bond for the person concerned in November 1990, considered sufficient to consider the testator's inability to make a will on 11.11.1990 as proven.

DECISION: A testator does not have to justify his wills on reasonable grounds that can be understood by third parties. His will alone is decisive. This follows from the testamentary freedom fundamentally guaranteed by the law (BayObLG, NJW 1992,248,249; Palandt / Edenhofer, loc. Cit., Transcript before § 2064 margin number 3).

FOR THE REASONS: According to § 2229 IV BGB as amended from 01.01.1992 § 2229 III BGB, a will cannot be drawn up who is unable to see the meaning of a declaration of intent due to a pathological disorder of the mental activity, a mental weakness or a disorder of consciousness or to act on that insight. In order to be able to testify, it is not sufficient that the testator had a general idea of ​​how the will was drawn up and of the content of his will; Rather, he must also be in a position to form a clear judgment about the scope of these orders and their effects on the personal and economic circumstances of the persons concerned as well as about the reasons for and against their moral justification and, after this judgment, free from To act under the influence of any interested third parties.

According to the principle that the disturbance of intellectual activity is the exception, a testator is to be regarded as capable of testifying as long as his inability to testify has not been proven to the full certainty of the court (BayObLG. FamRZ 1994,593; Palandt / Edenhofer, BGB, 54th ed ., § 2229 margin number 13). This applies even if the testator was in custody or in care. The determination of the inability to make a will as a fact that destroys the law of inheritance must be borne by the person who invokes the ineffectiveness of the will based on it. The LG correctly applied these principles in the contested decision.

BayObLG, decision of 01.08.1997, BayObLGZ 1997, 256

Determination of the inability to test (in advanced cerebral arteriosclerosis):

  1. The principles of prima facie evidence also apply in the voluntary jurisdiction procedure.
  2. On the question of prima facie evidence in the determination of the inability to testify as a result of advanced cerebral arteriosclerosis with regard to clear intervals.

The Bavarian Supreme Court had to decide on a case in which two parties involved in a certificate of inheritance proceedings had submitted conflicting applications for a certificate of inheritance to be issued. Essentially, the question of the inability to test an 87-year-old testator with advanced cerebral arteriosclerosis was to be clarified with regard to clear intervals. In the case there, the guardianship judge, based on the report available to him and his personal impression of the testator, gained the conviction only a few days before the testament was drawn up that the testator was of the intellectual level of a child under seven years of age and completely dependent and in the hands of skilled people very easily influenced '(loc. cit., page 264). In the subsequent incapacitation proceedings of this testator, the judge there came to the conclusion that the testator was no longer in a position to legally dispose of her property due to her mental disorder and that incapacitation should not be pronounced only because the testator held a small part of her Affairs can still take care of themselves and a guardian is sufficient for the management of their property matters (loc. Cit., Page 264).

Even in such a case, the BayObLG did not consider the ability to testify to be ruled out because the testator could have been able to testify within a clear interval. The arguments of the court can be regarded as fundamental for many later relevant decisions.

OLG Frankfurt a.M., decision of December 22nd, 1997 - 20 W 264/95: Determination of the testator's inability to make a will:

If there is any doubt that the testator was unable to recognize the meaning and consequences of his declaration when the will was drawn up due to a mental illness or impaired consciousness, he is incapable of making a will in accordance with Section 2229 (4) of the German Civil Code (BGB). The burden of proof is borne by the person who invokes the testator's inability to make a will. The burden of proof is transferred to the legal heir if he invokes a clear moment of the testator when the will is being drawn up. The court may not rely solely on the opinion of an expert, but must create a basis for it in advance. An expert opinion may only be used after considering all other statements and evidence. A private opinion is not valid evidence in court.

Kammergericht Berlin, decision of 07.09.1999, NJW 2001, 903 = FamRZ 2000, 912

Determination of the inability to testify (in the event of threat or error of motive) / quality of the witness evidence:

  1. A testator is to be regarded as capable of testifying as long as his inability to testify has not been proven. The burden of ascertaining the ability to make a will must be borne by the person who invokes the ineffectiveness of the will of the testator based thereon.
  2. If the court comes to the conclusion that the facts ascertainable by witnesses or other evidence are not sufficient to justify the exceptional case of the testator's inability to make a will with the help of an expert, it may refrain from having an expert opinion drawn up.
  3. To contest a will because of threat and error of motive.

The Court of Appeal had to decide on a case in which, among other things, it had to be clarified whether the alleged statements made by a pastor to a testator that the Church could no longer take care of her if she did not testify as desired could constitute a threat. With reference to the above-cited decision of the BayObLG, the Court of Appeal very instructively sets out the requirements for evidence in the FGG certificate of inheritance proceedings and the evidential value of individual pieces of evidence.

Regarding the witness evidence of a notary: “The court was also allowed to attach greater importance to his testimony, since as a notary according to § 28 BeurkG he was officially obliged to check the ability to testify before the notarization. With regard to “laypeople” testify: “Because they are obviously laypeople in the field of human medicine who are not particularly trained to assess the prerequisites for inability to testify. A violation of the duty of official investigation is therefore not to refrain from interrogating them. "

LG Hamburg, decision of February 17, 2000 - 301 T 264/99:

If one of the responsibilities of the guardian is property management, the revocation of a joint will can also be declared to the guardian.

Düsseldorf Higher Regional Court, decision of March 29, 2000, ZERB 2000, 204

Right of the parties involved to inspect the medical files consulted - If the probate court wishes to use the testator's medical file in its decision on the testator's ability to testify, it may not refuse to allow a party who requests access to this medical file; otherwise there is a violation of Article 103.1 of the Basic Law. If necessary, the medical file must be handed over to the private expert authorized by the applicant if the applicant needs the help of the private expert to provide a substantiated presentation of the facts.

BayObLG, decision of April 19, 2000 - 1Z BR 159/99 (FamRZ 2001, 55)

According to general law, the ability to make a will presupposes that the testator has drawn up a will and the content of the testamentary dispositions contained therein. He must be able to form a clear judgment of the scope of his orders, in particular what effects they have on the personal and economic circumstances of those concerned. This also includes the reasons that speak for and against the orders (cf. BayObLGZ 1999, 205, 211). According to the judgment formed in this way, the testator must in principle be able to act free of the influence of third parties (cf. BayObLG, NJW-RR 1998, 870; std. Case law). This does not exclude that he accepts suggestions from third parties and implements them by virtue of his own decision in his last will (cf. BayObLG, FamRZ 1990, 318). The question of whether the prerequisites for testability are met is essentially of a factual nature. The question of whether the testator was able to testify at the time the will was drawn up or not can be resolved after std. Answer the case as a rule only with the help of a psychiatric SV (see BayObLG, FamRZ 1985, 742, 743; BayObLGZ 1995, 383, 391 = FamRZ 1996, 566). However, the involvement of an SV is only required if, based on concrete evidence, there is reason to doubt the testator's ability to testify at the time the will was drawn up (see BayObLG, FamRZ 1998, 1242, 1243).

OLG Celle, decision of April 28, 2003, 6 W 26/03; FamRZ 2003, 1700 = NJW-RR 2003, 1093

Since the disturbance of intellectual activity is the exception, a testator is to be regarded as capable of testifying as long as the inability to testify has not been established to the full certainty of the court. The burden of establishing the inability to make a will as a fact that destroys inheritance law is borne by the person who invokes the ineffectiveness based on it. Therefore, if doubts remain that cannot be resolved despite exhausting all the possibilities for clarification, the testability must be assumed (BayObLG NJW-RR 2002, 1088 = FamRZ 2002, 497; OLG Frankfurt NJW-RR 1998, 870 f .; 1996, 1159).

BayObLG, decision of August 17, 2004, 1Z BR 53/04; FamRZ 2005, 658

Testability in the case of paranoid delusions - testamentary is someone whose considerations and volitional decisions are no longer based on an appraisal of external things and living conditions corresponding to the general understanding of traffic, but are influenced by pathological feelings or pathological ideas and thoughts in such a way that they are actually no longer free.

BayObLG, decision of 07.09.2004, 1Z BR 73/04; FamRZ 2005, 555

Inability to testify in the case of vascular dementia - This interpretation rule of § 2069 BGB cannot be applied, not even accordingly, if the testator has appointed a person who does not belong to his descendants. In the case of so-called vascular dementia, the symptoms can usually be assumed to vary considerably. In the case of this type of dementia, it cannot be ruled out that in the relevant period in which the will was drawn up, states alternated in which the testator's ability to discern and freedom of will were still present and in which these were no longer present. In such a case, a testability can therefore be assumed.

BayObLG, decision of October 7, 2004, 1Z BR 76/04

The person whose considerations and volitional decisions are no longer based on an appraisal of external things and living conditions corresponding to the general understanding of traffic, but are influenced by pathological feelings or pathological ideas and thoughts in such a way that they are actually no longer free is incapable of making a will.

BayObLG, decision of March 24, 2005, 1Z BR 107/04; FamRZ 2006, 68

No inability to test in the case of only intermittent psychopathological disorders - If there is a significant improvement in the findings after a cerebral infarction and only partial psychopathological disorders, a temporary test cannot be excluded. As a medical layperson, the judge only has to deal with the loopholes and contradictions in an expert report.

OLG Celle decision of September 26, 2006 - 6 W 43/06 :::

The expert opinion on the testability of a mentally handicapped testator has, if there is reason to do so, to extend to the question of whether the testator was able and able to evade the influence or manipulation of third parties in the course of his decision-making.

OLG Munich, decision of August 14, 2007, 31 Wx 16/07;MDR 2008, 212 = DNotZ 2008, 296 = FamRZ 2007, 2009 = FGPrax 2007, 274 = NJW-RR 2008, 164:

There is no testability graded according to level of difficulty.

OLG Munich, decision of May 19, 2010, 31 Wx 38/10; MDR 2010, 1266 = FGPrax 2010, 195 = NJW-RR 2010, 1382:

For the reinterpretation of a joint will that is invalid due to the incapacity of a spouse to make a will into a single will.

AG Munich, resolution of October 13, 2010, 705 XVII 1559/08; NJW 2011, 618 = ZEV 2011, 81:

Supplementary care can be arranged if a joint will is intended to be revoked if the revoking spouse is also a supervisor

If the spouse is incapable of doing business or making a will as a result of dementia, if the other spouse, who is also the custodian, wishes to revoke the joint will, additional care can be ordered for receiving the revocation of the will.

LG Traunstein, judgment of March 20, 2012, 6 O 2416/11, BeckRS 2013, 02873 = ZEV 2013, 345:

No breach of duty on the part of the supervisor who started the civil process attempt to have the inability to testify of the supervised person determined during his lifetime.

Düsseldorf Higher Regional Court, decision of June 1st, 2012 - I-3 Wx 273/11, MDR 2013, 101 = NJW-RR 2012, 1100:

Doubts about the testator's ability to testify at the time of making his testamentary disposition can only give rise to obtaining the opinion of a psychiatric or neurological expert if they are based on objectifiable facts or auxiliary facts (not: assumptions and probability judgments for possible clinical pictures without connection to conspicuous symptomatic behavior of the testator in the temporal connection with the drawing up of the will).

OLG Celle, decision of February 13, 2013, 1 Ws 54/13, ZEV 2013, 344:

If a supervisor causes an incapable testator to use himself or a third party as a beneficiary by means of a testamentary disposition, infidelity or participation in this can be justified by using the testator as an undolute tool against himself.

OLG Cologne, decision of July 12, 2013, 2 Wx 177/13, FGPrax 2013, 216 = NJW-RR 2013, 1421 = Rpfleger 2014, 24:

The return of a will in official custody is a testamentary disposition. It therefore requires the ability to make a will. If this is not available, no return can be made.

Düsseldorf Higher Regional Court, decision of November 4, 2013 - 3 Wx 98/13, FGPrax 2014, 70:

If there are no indications of an incapacity to make a will, the court does not need to obtain an expert opinion.

OLG Munich, decision of October 31, 2014, 34 Wx 293/14, NJW-RR 2015, 138:

  1. To prove the succession through a notarial will instead of a certificate of inheritance.
  2. If several expert findings, which were created in connection with the establishment of the will, the result that the legal capacity or testability is to be affirmed, but in any case cannot be unequivocally denied, the testability is to be assumed for the succession. The land registry cannot request a certificate of inheritance on the grounds that it has not been unequivocally proven that the testator was able to testify.
  3. Supervision as such does not affect the ability to testify; There is also the presumption of the ability to testify for the supervised person. Well-founded or specific doubts are required, for example based on specialist medical reports or judgments that can justify the request to submit a certificate of inheritance.

KG Decision of November 11, 2014, Ref. 1 W 547/14 - 1 W 548/14, 1 W 547/14, 1 W 548/14, FamRZ 2015, 698 = MDR 2015, 163:

If the land registry has indications that a testator is incapable of making a will at the time of the notarial certification of a will, the submission of the will and the record of its opening can still suffice to prove the succession if the trial court is involved in a legal dispute between the only claimants in question has legally established the right of inheritance of the person who has been designated as the heir in the will. The findings can also have been made in an acknowledgment judgment.

OLG Bamberg, decision of May 22nd, 2015 - 4 W 16/14, FamRZ 2016, 83 = MDR 2015, 957 = ZErb 2015, 314 = RNotZ 2015, 655 = ZEV 2015, 548 = LSK 2015, 370409

  1. For the assumption of inability to test in vascular dementia of moderate severity in connection with marked disorientation. (official guiding principle)
  2. Even in the case of proven incapacity to testify, the testator does not have his own right of contestation in accordance with Section 2282 II BGB with regard to his own non-reciprocal dispositions.

BGH, decision of July 24, 2018, 3 StR 132/18

A supervisor's duty to look after the assets of the person being looked after as the testator in the event of his / her inability to testify. If a legal guardian (§§ 1896 et seq. BGB) who is responsible for the provision of property causes a person who is under his / her care and who is incapable of making a will to favor him in his will, this is contrary to the decision of the Higher Regional Court of Celle of February 13, 2013 (1 Ws 54/13, NStZ-RR 2013, 176, 177), on which the first court apparently orientated itself - no endangered damage: as long as the person being cared for is alive, the will does not reduce the value of their property. The fact that, as a result of inability to testify, she cannot otherwise dispose of her assets in a will, affects only her freedom of disposition.

OLG Celle, judgment of 07.01.2021, 6 U 22/20

  1. To determine the incapacity of a testator under supervision.
  2. Regardless of the fact that the legislature still does not assess that donations from the carer to the carer are to be viewed as immoral, a notarial will in favor of a professional carer can be immoral if - as in the present case - a professional carer has her legally conferred position and her Influence on an elderly, sick and single testator is used to influence the easily influenced testator in a targeted manner and to induce him to dispose of a last will in front of a notary she has called upon.
  3. The fact that the tax authorities will inherit as a result of the invalidity of the will (§ 1936 S. 1 BGB) does not change the standard when applying § 138 BGB in favor of the appointed heirs.

Home as the heir of the resident?

The appointment of the institution provider as a subsequent heir does not constitute a violation of Section 14 (1) HeimG, the testament of the testator is effective. The prerequisite is that the employees of the home owner only find out about the will after the death of the resident. This was decided by the Federal Court of Justice on October 26, 2011 (IV ZB 33/10; NJW 2012, 155 = DNotZ 2012, 210).

Report on this decision (bt-direct)

See also

Supervisor as heir, succession, funeral contract

literature

Books

  • Deinert / Jegust: Death and Funeral Law (5th edition August 2014) Information on this, ISBN 3936057311
  • Eulberg / Ott-Eulberg: The estate maintenance in legal practice, ISBN 3824050129
  • Fünfeich: The testability of those unable to write and speak (housework)
  • Köhler: The doctor's obligation to provide information in the dispute about the testator's ability to testify in the hereditary pretender dispute, 1996, ISBN 3935625456
  • Roth: Inheritance and custody law, Federal Gazette, 2016
  • Schmoeckel: Dementia and Law: Determination of business and testamentary capacity; Nomos-Verlag 2010, ISBN 978-3832955076
  • Wetterling: Free will and neuropsychiatric diseases: A guide to assessing business and testability, ISBN 3170293788
  • Zimmermann: inheritance law and supervision; Gieseking-Verlag 2012, ISBN 978-3-7694-1104-1

Magazine articles

  • Bartsch, The doctor's postmortem confidentiality in the dispute over the patient's ability to testify, NJW 2001, 861
  • Cypionka: The effects of the BtG on the practice of the notary, DNotZ 1991, 571
  • Gebhardt: The time for judging the immorality of a will; Rpfleger 2008, 622
  • Geyer: The Disabled Will - Effects on Legal Care; BtPrax 2016, 176
  • Habermeyer / Saß: legal incapacity or nullity of a declaration of intent and their position on the provisions of the right to care for children; Der Nervenarzt 5/2002, 478
  • Hahn: The Effects of the Right of Care on the Law of Succession; FamRZ 1991, 27
  • Helms: The revocation and contestation of reciprocal dispositions in the event of business and testamentary incapacity; DNotZ 2003, 104
  • Keim: To revoke mutual dispositions against. the authorized representative of a spouse; ZEV 2010, 358
  • Lange: Elimination of wills by carers, ZEV 2008, 313
  • Losch: Testability with special consideration of the clinical picture of dementia and its post-mortem assessment; ZErb 2017, 188
  • Müller: On the effectiveness of lifelong and testamentary contributions by the person under care to their supervisor; ZEV 1998, 219
  • Schmoeckel: The business and testability of dementia patients, NJW 2016, 433
  • Wetterling / Neubauer: Psychiatric Aspects of Testability Dementer; ZEV 1995, 46
  • Widmann: The enforcement of funeral orders of the deceased within the framework of family law care for the dead, FamRZ 1992, 759
  • Zimmer: Dementia as a challenge for inheritance law practice; NJW 2007, 1713

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