If there is any doubt about the authenticity, the probate court will check, often with written reports. Absolute certainty is not necessary; a “reasonable degree of certainty” is sufficient. Forgeries are punishable by law and can lead to inheritability. Without proof, legal succession applies.
First examination by the probate court
If an application for a certificate of inheritance is pending, the probate court first carries out a formal and substantive examination to determine whether the present document can even be considered as a will. As Rose & Partner explain, this is an initial plausibility check, which checks, for example, whether the form specifications are adhered to and the content is fundamentally comprehensible. According to the decision of the Brandenburg Higher Regional Court (ref. 3 W 80/24), the court does not have to resolve every theoretical uncertainty. It is sufficient if a “degree of certainty that is useful for practical life” is achieved and that excludes reasonable doubts – absolute scientific certainty, on the other hand, is not necessary.
Evidence of possible forgery
Evidence of possible counterfeiting can arise from various circumstances. These include noticeable differences in the writing or content that clearly contradicts previous statements or previous wills. As Rose & Partner explain, unusual discovery situations or a suspicious date can also give rise to doubts. A striking example is provided by the Rostock Higher Regional Court (Az. 3 W 128/19): There, the testator’s established ability to write and the fluent handwriting of the will were in clear contrast, and the location given turned out to be less than credible.
Evidence and reports in the proceedings
In a dispute over the authenticity of a will, an expert’s comparative report is usually the most important piece of evidence. In order to enable a well-founded examination, the court can take action itself and obtain suitable comparison documents – for example from private documents, from banks, insurance companies or authorities. It then commissions a qualified expert who uses these samples to analyze the testator’s handwriting and signature. According to § 1937 BGB, the burden of proof lies with the beneficiary: he must convince the court that the will actually came from the testator. As the Rostock Higher Regional Court made clear, missing or insufficient proof automatically leads to legal succession applying.
Consequences of a will forgery
Forgery of a will has serious legal consequences. According to Section 267 of the German Criminal Code, anyone who falsifies a will or completely imitates it is committing a document forgery – and is thereby committing a criminal offense. Even the attempt is covered by law and can be punished with a fine or imprisonment. As Rose & Partner emphasize, such an act can also lead to the perpetrator’s inheritability. This means that he loses his entire right to inherit, even if he would actually be entitled to inherit according to legal succession. If the authenticity of a will cannot be proven with the required degree of certainty, then – as the Rostock Higher Regional Court has decided – legal succession automatically applies, so that only the formally entitled heirs are considered.
Editorial team finanzen.net
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