Signature requirements for handwritten wills

Time and again, court decisions deal with the effectiveness of signatures on handwritten wills. Only recently, in its decision of 25 August 2023 (case reference: 33 Wx 119/23), the Munich Higher Regional Court ruled that a will was invalid due to an unsuccessful signature. The consequences can be devastating for the individual. Instead of the testator's actual intention, intestate succession applies or succession is determined according to an earlier will. This means that people can be favoured who the testator did not intend to include. The following applies to an effective signature under a will:

According to Section 2247 (1) BGB, the testator can make a will by means of a declaration written and signed by hand.

The purpose of this formal requirement is for the testator to familiarise themselves with the will in detail so that they are clear about exactly what they want to testate and to express this will as clearly as possible. Furthermore, handwriting offers increased security against falsification of the testator's will. A will is void if it violates these formal requirements.

Section 2247 para. 3 BGB regulates the type of signature. According to this, the signature should contain the testator's first name and surname. If the testator signs in a different manner and this signature is sufficient to establish the testator's authorship and the seriousness of his or her declaration, such a signature does not prevent the validity of the will. It follows from this that signatures with the first name or a nickname are also sufficient - however, these do not offer legal certainty due to the seriousness test that is then pending. Furthermore, although the signature does not have to be legible, simple drawings such as lines and tick marks are not signatures. The originator of the signature can also be doubtful in the case of printed letters, as these sometimes do not have their own typeface, which makes identification more difficult. It is therefore advisable to sign using normal handwriting with first and last names.

One Underscript belongs to under the text of the will! The signature has two functions: on the one hand, the identification function (which ensures that it can be verified whether the testator has actually made the will), and on the other hand, the concluding function. The signature must therefore physically finalise the declaration. In this regard, the BGH has boldly stated that a "superscription" is not a signature (BGHZ 111, 48). This case law has since been softened somewhat. According to this, it is sufficient if the signature is in such a spatial relationship and connection with the text that it covers the declaration as completed according to the public perception (OLG Hamburg, decision of 8 October 2013 - 2 W 80/13). Here too, however, interpretation is required, which makes the examination of the validity of the will unpredictable - as far as possible, the signature should therefore be made below the declaration.

The importance of adhering to these criteria is demonstrated by the recent example of the Munich Higher Regional Court. In this case, a testator had made the following will:

 

10.3.2022

Testament! I ... [= name of the testator] bequeath everything I have.

My savings book account Raiffeisenbank ...

Insurance with Zurich Insurance ...-...

["Signature" of the testatrix]

To Mr ...

... [address]

 

This is sufficient according to the above-mentioned principles notwith the result that this will was not effective. The Munich Higher Regional Court explained this:

"According to the outward appearance, the testator initially wrote down that she wanted to bequeath everything she had, i.e. give it by testamentary disposition and thus exclude the statutory right of inheritance. The testator signed this "blank" declaration. However, she only wrote the core statement to whom she wanted to bequeath everything underneath. This means that the rationale of the formal requirements, namely to encourage the testator to be clear about the content of her disposition of property upon death, has not been fulfilled: It is not expressed that the testator, when writing down and signing the first part of the text of her disposition, would have clarified the person to whom she wanted to bequeath everything." (OLG Munich, decision of 25 August 2023 - 33 Wx 119/23 e, para. 15). It should also be noted that the will at issue here was in an envelope labelled "Testament" - even this was not sufficient for the Munich Higher Regional Court to assume that the will was valid.

In this context, it should be noted that subsequent additions to an existing will are of course possible, so that the entire will does not have to be rewritten. However, a further signature under the new declaration is required for this declaration to be effective.

In this respect, it should be noted that there are a number of legal difficulties in drawing up a will that many people are not aware of. After the death of the testator, this often leads to costly disputes that could have been avoided relatively easily. In case of doubt, an expert lawyer or notary should always be consulted.

 

Yanik Zimmerer, trainee lawyer