Jan Peter Schmidt
Grundlagen der Testierfähigkeit in Deutschland und Europa
Jahrgang 76 (2012) / Heft 4, S. 1022-1050 (29)
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Principles of Capacity to Make a Will in Germany and Europe Capacity to make a will is an essential prerequisite for the exercise of freedom of testation. In practice, problems arising from it are usually of a factual nature and concern establishing the testator's state of mind at the moment of executing the will. This paper focuses on some theoretical aspects of the topic, especially its relation to the general rules on capacity. The starting point of the analysis is German law, which is then put into a comparative perspective. The German Civil Code (BGB) deals with capacity to make a will in a special rule, although this does not differ substantially from the general regime. Accordingly, in all types of legal transactions the actor is required not only to act voluntarily, but also to have capacity of discernment, i.e. to understand the content and the consequences of the transaction. In German legal writing, this uniform standard of capacity has recently been called into question. As wills take effect only after the testator's death, the testator can never be negatively affected by his own provisions, unlike the position under contracts. Therefore, it has been argued, the requirements to make a will can and should be handled more liberally. However, this reasoning shows a misguided conception of the function of the rules on capacity. Their primary role is not to serve as a means of protection but to ensure the necessary preconditions for legal self-determination. Hence, there is no justification for subjecting the various forms of capacity to different standards. As regards the determination of a person's capacity of discernment, German courts and the prevailing opinion in legal writing advocate an abstract approach that does not take into account the complexity of the contract or will at hand. However, the resulting all-or-nothing solutions are unsatisfactory in the case of persons whose mental abilities have abated. Therefore, the preferred approach is the doctrine of relative incapacity, which allows for the necessary flexibility and is already accepted in several other European legal orders. The minimum age for making a will in Germany has been 16 since the BGB first came into force, while the minimum age for concluding contracts was initially 21 and is now 18. At first sight, this differentiation between wills and legal transactions inter vivos appears to be arbitrary, but it is well founded if one takes into account that German law does not permit minors to execute a will via their legal representative. Meanwhile, some European states continue the Roman law tradition and have a minimum age of just 14, while others do not permit minors to execute a will at all. However, these differences appear to be rather accidental, as they are explained either historically, or by the fact that legislatures necessarily have to take a decision within a certain range of reasonable possibilities. On the whole, capacity to make a will emerges as a rather technical subject that is not specifically moulded by legal culture.