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Last will by foreigners in Germany

I meet with this error on a regular basis in my practice:

A foreigner writes his/her testament in Germany and is not aware of the strict formal requirements of German Inheritance Law for a valid testament. For example that a private testament has to be written with one´s own hand, from A to Z. 

German Courts then often declare the last will invalid, without checking, whether the last will is maybe in line with the legal system of which the testator is a national. 

Fatal error!

The Hague Convention on the Conflicts of Laws Relation to the Form of Testamentary Dispositions says differently in its Article 1:

“A testamentary disposition shall be valid as regards form if its form complies with the internal law:

a) of the place where the testator made it, or:

b) of a nationality possessed by the testator, either at the time when he made the disposition, or at the time of his death, or:

c) of a place in which the testator had his domicile either at the time when he made the disposition, or at the time of his death, or:

d) of the place in which the testator had his habitual residence either at the time when he made the disposition, or at the time of his death, or:

e) so far as immovables are concerned, of the place where they are situated.”

These rules have had to be applied for decades and the entering into force of the EU-Regulation  650/2012 (to be applied on death-cases after 17. August 2015) have not brought any change here. 

To take an example: The testator is German-Hungarian citizen living in Germany. His testament is formally not in line with German law, but keeps the requirements of Hungarian law. Result: The last will is formally valid. 

You could also choose the example of an US-citizen, though the USA is not a Member-State of the Hague Convention, the result is the same. If s/he keeps the formal requirements of the State s/he is a national of, the testament will be valid. 

And if s/he has multiple nationalities? Then the testament has to be checked, whether it is in line with some of them.

If you are in situation that there is a last will you might benefit from, then have the case checked by an expert. Even if the case already seems to be „over“. 

If you need me, you find my availabilities here. 

Dr. Donat Ebert
Lawyer in D and HU


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