Testamentary Capacity: Basics

Short: Testamentary capacity refers to a person’s legal ability to create a valid will. It requires that the testator can understand the significance of their decisions and freely form their own will.

In more detail: Doubts about testamentary capacity often arise with advanced dementia or severe mental illness and can lead to disputes among heirs after death.

In detail

• Legal presumption: Testamentary capacity is generally presumed; anyone disputing it must prove the opposite in case of a dispute.
• Age limit: From a certain age, minors can already be partially capable of making a will under special conditions.
• Illness-related restriction: Advanced dementia, acute psychosis, or severe disturbances of consciousness can fully or partially eliminate testamentary capacity.
• Medical certification: In cases of doubt, obtaining a medical certificate at the time of will creation is recommended to prevent later disputes.
• Notarial certification: A notary generally checks the outward impression of testamentary capacity when a will is drawn up, which can complicate later challenges.
• Contesting after death: Heirs can contest a will due to lack of testamentary capacity but must provide convincing evidence to do so.
• Precautionary documentation: Witness statements, video recordings, or detailed records at the time of will creation can be valuable evidence in case of a dispute (testament-und-gesetzliche-erbfolge, vorkaufsrecht-grundlagen).