Proof of the right of inheritance in the absence of the original handwritten will

Legal situation as regards the substantiation of a copy of the will

According to settled case law, a formally correctly drawn up will may be invalid not just because the original is no longer available. Proof of the contents and validity of a will may also be provided by other pieces of evidence (such as, copies or witness statements). However, there are stringent requirements that have to be satisfied here in order for the court to form its opinion. This can be demonstrated by a case ruled on by the Higher Regional Court (Oberlandesgericht, OLG) in Brandenburg in its decision of 3.4.2025 (case reference: 3 W 53/24); the issue here was whether or not a copy of a handwritten joint will presented by the testator’s wife was sufficient for a change in the succession as compared with intestate succession.

Issue: Subsequent presentation of a will

Shortly after the death of her husband, the wife F initially applied for a certificate of inheritance according to which she and the testator’s two children would become his heirs on the basis of intestate succession. At a much later stage, F presented a copy of a handwritten joint will to the probate court. In this will the spouses had mutually appointed each other as heirs. However, the corresponding original document could not be found.

Ruling - Inability to find a will does not constitute a revocation, however, …

First of all, the OLG Brandenburg clarified that a handwritten will would not automatically be deemed to have been revoked merely because it could not be found. In particular, there was no legal presumption that the testator had personally destroyed the missing will and, thus, it had to be deemed to have been revoked in accordance with Section 2255 of the German Civil Code. It is generally possible, using all the allowable pieces of evidence, to verify the format and content of a will that can no longer be found. These include presenting a copy and hearing witnesses who are able to provide information about the drawing up of the will. However, strict requirements have to be placed on such verification. The evidentiary value of a copy is normally classified as lower than that of the original, especially if no further substantive objective evidence exists.

…. there were doubts about whether a will had actually being made because of …

In the specific case, according to the court there were doubts that could not be dispelled with respect to the actual drawing up by the testator of the will, which had been provided as a copy. In particular, the witness statements added to the ambiguity. While one witness stated that the wording of the will had been compiled through internet searches, another witness disputed that such an approach had been used. Moreover, the supposed situation in which the will had been drawn up - in the course of a coffee party - was depicted as being rather informal; this had sowed doubt about the seriousness and definitiveness of the intention to make a will.

… unusual behaviour

Ultimately, the behaviour of F herself was especially relevant for the decision. According to her own statements, while for years she had been keen on securing testamentary protection, in the application for a certificate of inheritance that she filed immediately after the succession event there was no mention of a will. Instead, she expressly noted that no will existed. This discrepancy between the claimant’s behaviour and the subsequent submission was judged to be crucial by the court.