Grundlagen der Testierfähigkeit in Deutschland und Europa (Principles of Capacity to Make a Will in Germany and Europe)

Abstract

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 rules on capacity to conclude transactions inter vivos. The starting point of the analysis is German law, which is then put into a comparative perspective. The different European legal orders show many similarities, while differences, e.g. regarding age limits, appear to be rather accidental. On the whole, capacity to make a will emerges as a rather technical subject that is not specifically moulded by legal culture.

This article is published in this Research Paper Series as part of the special issue of the Rabel Journal in honour of Reinhard Zimmermann’s 60th birthday with the generous and exceptional permission of the rights owner, Mohr Siebeck. Full-text Rabel Journal articles are available via pay-per-view or subscription at IngentaConnect, a provider of digital journals on the Internet.

Note: Downloadable document is in German.

Keywords: Capacity to make a will, capacity to conclude contracts, wills, freedom of testation, age limits, capacity of discernment