Formal requirements for a will in Germany, Great Britain and the USAThe formal requirements for a will in Germany are very different from those in other countries such as the USA and Great Britain. In Germany, a will must normally be handwritten and signed by the testator. It is also in principle not required in Germany that there be two witnesses, unlike in the USA or Great Britain. An exception to this is the emergency will before three witnesses as provided for under Section 2250 of the German Civil Code (BGB).
Firstly, the emergency will requires that an emergency situation exists, such as when other forms of emergency will, e.g. the emergency will made before the mayor (Section 2249 BGB) can no longer be made because death is imminent. In this case, just a verbal statement is sufficient. However, a written record of this must be made, and this record must be signed by three witnesses. A higher German court dealt wíth such a case recently (Cologne Higher Regional Court, decision of 5 July 2017, case no. 2 Wx 86/17). This decision established a principle of law that has already existed for a long time in other countries such as Great Britain and the USA, where most wills require at least two witnesses – the witnesses may not themselves be beneficiaries of the will, nor may family members of beneficiaries witness the will either.
Different arrangements in California
These differ from Anglo-American legal systems, which have been dealing with the subjects of witnesses and wills for some time. In California, for example, a will is not rendered invalid if one of the witnesses is a beneficiary of the will. However, the number of witnesses required is then increased from two to three (Section 6112 of the California Probate Code), two neutral witnesses and one beneficiary. It is otherwise assumed that the will has been made under duress to exploit an emergency situation. The German court merely had occasion to establish that the mere presence of a fourth person who has not signed the written record is not sufficient to substitute for the lack of a neutral third witness.
Reading the Californian law just referred to (Section 6112 of the California Probate Code), one can guess at the matter upon which a German court will be asked to decide at some time in the distant future – is it necessary for the testator to survive the written record or is it sufficient for him or her to have said everything he or she wanted to say and for the record then not to have been written down until after his or her death? For California the answer is clear: the testator must live long enough to see the witnesses sign the will (Section 6110 (3) (c) of the California Probate Code). For Germany, this question is being left to await future developments.