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If the testator is at acute risk of death, it is possible to draft what is referred to in German as a “Nottestament”, or nuncupative will, before three witnesses. That being said, even a nuncupative will has to fulfil certain criteria for it to be effective.

It is possible to prepare a will with three witnesses if the testator is faced with the imminent prospect of death. We at the law firm GRP Rainer Rechtsanwälte note that this requires the risk of death to be so acute that there is unlikely to be enough time left to draw up a will with a notary or mayor. A judgment of the Oberlandesgericht (OLG) Köln [Higher Regional Court of Cologne] from July 5, 2017 demonstrates, however, that persons who are a close personal relation of the beneficiary cannot be a witness to this kind of nuncupative will (Az.: 2 Wx 86/17). According to the ruling, a nuncupative will before three witnesses is ineffective if a son contributes to preparing the will appointing his mother as the sole heiress.

Yet this is exactly what happened in the case that came before the OLG Köln. Four people attended the testator at his death bed. Three of them recorded in the minutes that the significant other of the 84-year-old should become the sole heiress. The son of the appointed sole heiress was among the witnesses. The testator no longer had the strength to sign the will.

The testator”s significant other eventually applied for the certificate of inheritance. This move was subsequently resisted by the nieces and nephews of the deceased man. In the absence of a will, they would have been entitled to inherit under the rules of intestate succession. The OLG Köln upheld the decision of the courts of lower instance, according to which the testator”s significant other did not become the sole heiress.

The Court held that while it is possible in principle to prepare a nuncupative will if the testator is at acute risk of death, no child or close relative of the beneficiary under the will can be a witness as was the case here. The fact that a fourth person was present did not influence the OLG”s decision, with the Court stating that the person in question was not involved in recording the relevant information but instead merely heard the testator”s statement. It went on to say that the will was invalid because only two people ultimately participated in recording the information.

The case shows that it is advisable to get to grips with a will in good time, because otherwise the rules of intestate succession apply and these are not necessarily in line with the testator”s wishes. Lawyers who are experienced in the field of succession law can offer advice. (