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On the effectiveness of statements on testamentary capacity

On 13 July 2021 (10 U 5/20), the Higher Regional Court of Hamm had to decide on the probative value of a statement by medical laypersons on the capacity to contract and the capacity to make a will, whereby it should be noted that the capacity to make a will is a subset of the capacity to contract, which is subject to less stringent requirements, but whose existence is examined according to the same criteria.

The case before the Higher Regional Court concerned a father (testator) with two sons. In March 1996, the father concluded an inheritance and compulsory portion waiver agreement with the first son (plaintiff) and appointed the second son (defendant) as his sole heir in a will in April 1996.

Many years later, in August 2009, the father and the first son concluded another notarised contract in which both declared in agreement to annul the contract of March 1996. When the father died in 2017 and was undisputedly inherited by the second son alone on the basis of the will of April 1996, the first son claimed the compulsory portion against his brother as sole heir.
The sole inheriting brother (defendant) refused the compulsory portion on the grounds that the termination agreement of August 2009 was invalid because the father had no longer been legally competent at that time, citing examinations of his father in 2003 and 2004, in which a neurologist had diagnosed mnestic deficits in the father, as well as further examinations by a neurologist in January 2009, in which the father was diagnosed with moderately pronounced dementia with Alzheimer’s disease.

The first son (plaintiff), on the other hand, refers to the notarial termination agreement of August 2009 and argues that the notary – as can be read at the beginning of the document – had convinced himself first-hand of his father’s legal capacity in the course of the notarisation, so that there could be no doubt about this. The father knew about the significance of his declarations before the notary. The termination agreement of August 2009 was therefore effective and his waiver of the compulsory portion of March 1996 was therefore irrelevant.

The Higher Regional Court upheld the second son, the sole heir, and dismissed his brother’s action for information and payment of the compulsory portion. In doing so, the court essentially dealt with the evidentiary value of the notary’s finding on the father’s capacity to contract and stated in this regard that a psychiatric specialist qualification is required for the assessment of the medical prerequisites of the capacity to contract/test. According to the court, a notary does not have the necessary medical expertise to assess the extent of a dementia disease. His testimony, as well as the testimony of other persons who were in social contact with the testator during the period in question, had no particular probative value due to the lack of professional qualification.

Conclusion: If the testamentary capacity is to be proven with certainty, neither a confirmation of the notary nor the certificate of the family doctor is sufficient. What is required is a diagnosis by a neurologist.

Author: Dr Klaus Krebs


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