Veröffentlicht von:
Dementia – Are my parents in Germany still capable of making a will?
- 4 Minuten Lesezeit
In 2021, around 440,000 people in Germany were newly diagnosed with dementia.
Ideally, at the onset of such an illness, many preparations such as a will, a power of attorney, and an advance directive have already been made.
However, if this is not the case, the crucial question, especially for children, arises: can a father or mother with dementia still legally make these preparations in Germany effectively?
It can become even more complicated when cross-border issues, such as foreign assets or a retirement residence outside of Germany, come into play.
As a lawyer, based in Germany and specialized in international inheritance law, it is my aim to provide you with insights into this complex topic in this article. After all, the mental state of beloved family members, especially parents, is of the utmost importance when it comes to creating legally valid wills and directives.
Therefore, we will now delve into the concept of testamentary capacity, explore the effects of dementia on this capacity, and offer you valuable insights into how you can take legal action during this difficult phase. My goal is to support you with comprehensible information so that you can make informed decisions that align with the applicable legal regulations.
1. Legal Capacity ≠ Testamentary Capacity
a) Legal Capacity
Many people are familiar with the term legal capacity ("Geschäftsfähigkeit"). This is the ability to independently and obligatorily carry out legal transactions. One becomes fully legally capable at the age of 18, assuming there is no "state of pathological disturbance of mental activity." The cumbersome term "pathological disturbance of mental activity" mainly refers to (significant) mental disabilities, delusional or hallucinatory states, and, indeed, dementia.
b) Testamentary Capacity
Testamentary capacity is a separate evaluation from legal capacity. A person is considered legally incapable of making a will if they are unable to form their will freely and uninfluenced by a disease-related impairment of their mental activity, and to act based on valid insights.
This means that just because someone is no longer legally capable, they are not automatically lacking testamentary capacity. For testamentary capacity, it is necessary that your father or mother can act autonomously and make decisions independently. Three elements are crucial for this:
- Awareness of making a will: Your father or mother must understand that they are creating their own will and comprehend the significance of drafting their own will.
- Ability to assess individual provisions: Additionally, they must grasp the understanding of the dispositions they are making. They must be aware of whom they are "favoring" or "disfavoring" (by how much) in the will. In-depth legal knowledge is not necessary, as long as expert advice, for example from a lawyer or notary, is available. However, the awareness of disinheriting one of their children is necessary.
- Capacity to act: Furthermore, your parent must independently make the dispositions. This means that decisions must not be dictated by others. Your father or mother must be able to weigh the pros and cons independently. The capability of reading or writing is not necessarily required.
If these conditions are met, testamentary capacity can generally be assumed. This means that a will can still be validly created.
2. Contents of the Will
a) Emotional and Actual Dependencies
As dementia progresses, the assistance of close individuals and caregivers becomes more necessary. Often, emotional bonds develop in the final years of life, causing the pre-illness life to be forgotten in the truest (and harshest) sense of the word. For a person with dementia to draft a will in which all potential heirs feel fairly treated quickly becomes an impossibility.
b) Self-Control and Exercise of Power
For a will to be subsequently declared invalid because the testator was not free in their formation of will, many prerequisites must be met and provable. This might occur, for instance, if a close relative presents the person with dementia with the "choice," in the presence of independent witnesses, to either generously include them in the will or cease the further care on which the person with dementia depends. However, if significant pressure is not exerted by close relatives or caregivers, a testator with testamentary capacity is generally free to "reward" caregiving efforts in the will.
3. Proving Testamentary Incapacity
Proving testamentary incapacity after death is very challenging and usually only possible with relevant medical findings and diagnoses. The same applies to wills whose content did not arise freely.
4. Avoiding Disputes After Death
If a will has been drafted by a demonstrably dementia-affected testator and one of the potential heirs feels sufficiently disadvantaged, it can still lead to out-of-court or judicial disputes. These disputes are not only very costly for all parties involved but also extraordinarily lengthy, often preventing the bereaved from properly mourning and saying goodbye to the beloved family member. Instead, they ensure that even years after death, the vexing issue of inheritance remains unresolved, bank assets remain frozen, properties cannot be sold, and ultimately, all parties lose.
For this reason, it is crucial, especially when the mental faculties of beloved family members decline, to make legal preparations on a solid basis to avoid potential uncertainties and disputes. I offer you my expertise and support to navigate these sensitive matters in an organized manner. Expert estate planning ensures not only compliance with legal requirements but also ensures the respect of the interests and wishes of family members.
That is my goal, no more and no less.
Artikel teilen: