Cross-Border Wills: When the Dutch Notary Crosses the Border
In a remarkable judgment, the Federal Court of Justice (BGH) has reset the course for international estate planning. The core issue was the explosive question: Is a will valid if notarized by a foreign notary on German national territory? The IV. Civil Senate answered this with a clear yes, thereby strengthening the freedom of testation in an international context.
The Facts: A Revocation at the Kitchen Table
A Dutch national living in Germany had initially appointed his grandson as sole heir in a will in 2020. A year later, he called a Dutch candidate notary to his home in Germany. At his domestic residence, she notarized a new will. In it, the testator revoked the old disposition, appointed his divorced wife as sole heir, and explicitly chose Dutch inheritance law. After the grandfather's death, the disinherited grandson went to court, citing the nullity of the second will due to a massive formal defect: the Dutch notary should not have been allowed to act on German sovereign territory.
Legal Assessment: Choice of Law on Form Trumps the Principle of Territoriality
The BGH rejected the grandson's appeal. The Karlsruhe judges reached deep into the toolbox of Private International Law. The linchpin was the Hague Testamentary Form Convention (HTestformÜ). Since the testator was Dutch, the convention referred to Dutch law—including its notarization regulations and, crucially, the legal consequences of formal violations.
Although there was objectively a violation of the Dutch principle of territoriality, as the notary had left her permitted official district, the decisive detail—which the lower court had correctly determined via an expert opinion—was: under Dutch law, this trip across the border leads neither to nullity nor to formal invalidity of the will.
Particularly relevant in practice is the review of the German Public Policy (Art. 35 EuErbVO). Does the application of tolerant Dutch law violate fundamental German notions of justice? The BGH expressly denied this. The violation of the German Federal Notary Act (§ 11a BNotO) and a possible violation of the principle of territorial sovereignty under international law do not weigh so heavily in this case that the result would be intolerable. The significant circumstances of the individual case—the testator's Dutch nationality, the permissible choice of Dutch law, and the commissioning of a notary from the home country—tipped the scales in favor of the will's validity.
Conclusion and Impact on Advisory Practice
- Autonomy of Form: The question of what legal consequences a notarization defect entails is not assessed globally according to the German Lex fori, but follows the designated law on form (here under Art. 1 HTestformÜ).
- High Hurdles for Public Policy: The mere exercise of sovereign notary activity by foreign officials domestically does not necessarily lead to substantive intolerability. If a strong connection to the foreign legal system exists, a will can be formally valid despite a violation of domestic notarization law.
- Determination of Foreign Law (§ 293 ZPO): The judgment underscores the extensive duty of the trial courts to determine foreign law comprehensively through expert opinions and evaluation of case law. Speculation or the mere pointing out of alternative interpretations in foreign law is not sufficient for a successful appeal on points of law.
- Procedural Detail: The contestation of a testamentary disposition is not an independent legal relationship in the sense of a declaratory action (§ 256 ZPO), but only a preliminary question to the status as heir. Prayers for relief are to be interpreted pragmatically here.
