Tight requirements for the validity of emergency wills
Word has probably gotten around that it is advisable to think about creating your last will and testament in good time and that it is better to deal with this during your lifetime. All the same, many people still shy away from this engagement with their own mortality. When time then starts running out and the approaching end is imminent, admittedly, the law does provide two possibilities to formulate your last will and testament almost at the last minute. There are however strict conditions for this, as the Higher Regional Court (Oberlandesgericht, OLG) in Saarbrücken recently confirmed in its ruling of 4.2.2025.
An emergency will communicated verbally ...
In the case that was decided, a woman was discharged from hospital to the care of her general physician after she had refused to have her foot amputated, as had been recommended. The clinic confirmed that she was alert and fully oriented. However, her condition subsequently deteriorated and she communicated an emergency will verbally in the presence of three witnesses. Two days later, a morphine treatment commenced that affected her consciousness, and the woman died approximately a month later.
The heirs named in the emergency will applied for a certificate of inheritance identifying them as the heirs; their application was however rejected by the OLG in the final instance.
... would not be valid in the case of an unclear danger to death
The court declared the will to be invalid because the heirs were unable to demonstrate that, at the time when the will was made, the danger of death was so acute that it would not have been possible to give priority to drawing up the will before a notary, or by being transcribed by the local mayor. Besides the danger of death, this is a prerequisite for a so-called three-witness will. The witnesses were able neither to confirm the onset of the incurable imminent end phase of life, nor had they undertaken any efforts to quickly get hold of a local notary. Consequently, the will was found to be null and void and the rules of intestate succession came into effect.
Formal requirements for a will depending on the ‘urgency’
There are various possibilities for making a valid last will and testament. The simplest option is to write your last will and testament (legibly) by your own hand and to sign it. Information concerning the place and date is not mandatory, but is strongly recommended. Subsequent changes can be made in the same form. In the case of married couples who want to make a joint will, it is sufficient for all the dispositions to be handwritten by one spouse and for the other one to co-sign the text.
Another option is to engage a notary, either for a transcript by the notary (certification), or simply to hand over (the open or sealed) will to the notary. In the latter case, this can also be a printed declaration.
Moreover, there is then the option of an emergency will in the presence of witnesses:
- Emergency will in the presence of the mayor - If in the opinion of the competent local mayor, making a will in the presence of a notary is no longer possible because of the risk of death of the person ready to make a will, then the mayor can bring in two witnesses and record the last will and testament of this person.
- Three-witness will - If a danger of death exists that is so acute that the option of documentation by the mayor would probably also be eliminated, then the said three-witness will is permissible. The witnesses’ subjective concerns about the danger of death is sufficient in this case. The same applies to an imminent permanent lack of testamentary capacity. In this case, all the witnesses have to be present at the same time and throughout the act of execution and they must record the last will and testament in writing and sign it.
Important - Disinterested witnesses and ...
It should be noted that not every available person would also be a suitable witness. Beside the testator themself, their spouse, carer, or other authorised person would be disqualified from serving as witnesses. Likewise, the spouses and direct relatives of a witness may not themselves serve as witnesses. Finally, all other persons who are remembered in the will, or specified as the executor of the will would also be disqualified.
... time-limited validity
With regard to its purpose as a genuine emergency provision, the emergency will is valid only for a limited period of time. It is thus automatically revoked if the testator is still alive three months after it was made. Although, the period only runs for the time in which the testator would actually have had the possibility to create a notarised will.
