November 24th, 2017 by Samantha Von Sayn

Many Germans call Kelowna home. In fact, the Central Okanagan Economic Development Commission published a detailed demographic profile showing that over 24% of Kelowna and 14% of BC residents identify as German or of German decent. While the values and mentalities of the two countries are similar and complementing, the legal systems are highly different.

When it comes to Estate Planning, having certainty that your last wishes are executed is central. Therefore, it is imperative to know that a last Will and Testament in accordance with German laws might not be recognized in Canada. Succession law in Germany is uniform, as it is under federal jurisdiction, while it is provincially governed in Canada.

Differences include so called Inheritance Contracts (Erbvertrag), which bind the testator to the promises made in the Will and create an obligation. These contracts are not enforceable in Canada, but a legal way to bequeath your estate to a beneficiary in Germany. Another important difference is the legal minimum in German succession law, which apportions to an heir 50% of what he or she would have legally received, had there been no last Will. Someone might have excluded a child, spouse or parent from their Will knowing that they will receive a mandatory portion of their estate in accordance with German minimum laws, but there is no such legal minimum in Canadian succession law. Further, a conflict of laws might arise in cases where a testator holds dual citizenship or is a German citizen but resides in Canada and the question becomes which succession law should apply.

Possibly the most notable difference is the formal requirement regarding last Wills and Testaments. Germany requires a testator to express his last Will in wholly handwritten form, unless legalized at a notary office. A handwritten Will is the most common and preferred method for last Wills in Germany. The rationale behind it is to be able to establish the authenticity of the document by the author’s handwriting. In Canada handwritten last Wills are called Holograph Wills, which may create great difficulty, as they may not meet the formal requirements set out in the Wills, Estate and Succession Act (SBC 2009, c.13). They are expensive and time consuming even if not disputed, and if they are disputed, it usually results in a trial with everyone’s costs coming out of the estate on a special costs basis.

In order to avoid frustration, have your Will checked by a Wills lawyer to ensure it complies with Canadian formal requirements and de facto reflects your wishes.