GER: Can Individuals with Dementia Make Wills?

Sept 27, 2024 Benn-Ibler Rechtsanwälte

Up to what degree of dementia is it still possible to make a valid last will and testament? This question was considered by the District Court of Frankenthal, Germany.

The executor of the will of a deceased woman had brought an action in an expedited procedure. The deceased had no relatives who had a claim to a compulsory portion of the estate. The woman, who was 90 years old at the time, had made a will before a notary shortly before her death, bequeathing her property in the German city of Ludwigshafen to a friend’s son.

The notary had stated in the deed that, in his opinion, the woman had unrestricted legal capacity and the capacity to make a will. The executor, on the other hand, was of the opinion that the women had no longer been capable of making independent decisions at the time of the notarisation of her will, and submitted medical reports stating that the woman was beginning to suffer from dementia.

With regard to testamentary capacity in the context of dementia, the court stated as follows:

Even a person who is suffering from dementia may still be able to draw up a will in an effective manner. Testamentary incapacity does not automatically arise in each and every case of dementia. Rather, it depends on whether the individual is still able to form a clear judgement about the scope of their decisions and is able to make them without having to rely on the support of third parties.

A distinction must be made between mild, moderate, and severe dementia. If the disease is still mild, there is usually no reason to believe that an individual lacks capacity.

The court further stated that the burden of proving the lack of capacity lies with the executor. Here, the judges were of the opinion that it was not very likely that the executor would be able to successfully do so in the main proceedings. A classification of the degree of dementia, without which no reliable statement can be made, is missing from the documents the executor had submitted.

This ruling is still pending.

Press release, Landgericht Frankenthal, on case no. 8 O 97/24 (18 July 2024)