Testament is still the only possible document to rule over your property in the event of your death

Testaments, or wills, are made in writing and the formal requirements are strict.

The formal requirements of testaments must be taken seriously, as case law shows very clearly that defective testaments have almost systematically been considered invalid. The law contains provisions relating to the written form of the testament, its verification by two qualified witnesses, and its signing.

What kinds of wills can be made?

Rights of ownership to property, as determined by will, gives the beneficiary the widest possible property rights over the property left to him or her by the will. The beneficiary receiving the right of ownership to property is liable to pay inheritance tax.

As its name suggests, a right of possession and a right of use as determined by the decedent’s testament give the beneficiary the right to possess and use the property he or she receives under a testament. The beneficiary does not pay inheritance tax on the rights to property he or she inherits, instead the beneficiary of the right of ownership is liable for the inheritance tax. Such wills are generally made for the benefit of a spouse.

A testament can also be a so-called general legacy will or a special will. The most important difference between the classifications of wills is whether or not the will gives the beneficiary a participating interest in the estate.

A general legacy will can provide for the entire estate, a part of it or the part that remains after the other provisions have been fulfilled. An universal beneficiary under such a testament is treated as a shareholder of the estate.

A special will is an order that assigns to a specific beneficiary, for example, a specific item of property or a specific amount of money. A legacy is completed from an undistributed estate. The beneficiary is not a shareholder of the death estate.

Testament must always be served on the heirs

The beneficiary under the testament must serve the testament on the heirs in a verifiable manner if he or she wants the testament to be executed. Alternatively, the will can be renounced if the beneficiary does not wish to accept it.

The heir must invoke the invalidity of the testament by informing the beneficiary of his or her claim for a legal share if the testament prevents or restricts its execution.


What if I don’t want to accept the will?

The heir does not have to accept the will, but the will can be contested by bringing an action against the beneficiary under the testament in the district court within the prescribed time limits. The grounds for contesting a testament are specified in the Code of Inheritance.

A testament may be contested and declared to be invalid:

  1. the testator lacked testamentary capacity because of his or her age, or
  2. the testament was not made in the form prescribed by law, or
  3. a mental illness, debility or other mental defect of the testator had influenced the making of the testament
  4. the testator was, for example,  coerced into making the testament or induced to it through abuse of the testator’s lack of understanding


What if the will is open to interpretation?

Sometimes, it can also happen that the heirs disagree about what is stipulated in the testament. The content of the testament may be contradictory or open to interpretation.

In general, ambiguities can be avoided by having the testament drafted by a specialised lawyer. However, it is possible, for example, that the testament was drawn up several years before the death of the testator and that circumstances have changed to the extent that it is not possible to execute the will as it stands. In such a situation, the will must be interpreted.

The interpretation of the will can be contested in court, but more usually it is the appointed estate distributor who interprets the will. The most important consideration in the interpretation is to have due regard to the testator’s will and intentions.

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