October 29, 2017 /
An emergency will, also known as a “three-witness will”, can be drawn up by anyone who is in acute danger of death. A third party can write the testator’s last will and testament if the testator is no longer able to write it themselves.
The Hamm Higher Regional Court (OLG) has ruled that the testator must be in acute danger of death or the three witnesses must be convinced of this in order to draw up an emergency will. The acute danger of death is equated with the acute danger of imminent incapacity to make a will or to enter into a contract. If these characteristics are not present (even retrospectively), the last will is invalid. (REF. NO.: 15 W 587/ 15)
OLG sees no danger of death
In the decisive case, the testator suffered from terminal cancer and made an emergency will in the presence of three witnesses in which she limited her son’s inheritance. After the woman’s death (four days after the will was made), the son challenged the validity of the will. The OLG ruled in favor of the son, as although the woman’s state of health was poor, she was not in imminent danger of death. There was also no imminent testamentary or legal incapacity.
According to the OLG, the requirements for an emergency will are not fulfilled simply due to an advanced, incurable illness, even if the testator only has a short time to live. In addition, there must be an immediate danger of death or an immediate danger to testamentary capacity or legal capacity.
Source: haufe.de