Facts
The children of the testator, [K.] and [L.] (appellants), sued the appointed heir [B.] (respondent) and sought the annulment of the public last will and testament dated 11 November 2003 of the testator [E.]. The District Court declared the will invalid, but the High Court upheld the respondent's appeal and confirmed the validity of the last will and testament.
Considerations
1. Burden of proof for incapacity to judge The High Court rightly assumed that the appellants bear the burden of proof for the testator's incapacity to judge. Capacity to judge is the rule and is presumed. Only in cases where the testator was to be considered incapable of judgment over a longer period of time, the burden of proof is reversed.
2. Standard of proof for incapacity to judge The High Court applied the correct standard of proof, requiring an "overwhelming probability" of incapacity to judge. It is not necessary to prove the incapacity to judge with absolute certainty.
3. Capacity to judge of the…