Freedom of testation: Not everything is permitted
Those who write a will generally want to create clear and unambiguous arrangements. However, not every clause is legally valid. Certain wording can render parts of the will, or even the entire document, invalid. To avoid disputes among heirs and costly legal proceedings, you should observe a few basic rules.
In Germany, the principle of testamentary freedom generally applies. This means that everyone can decide who inherits their assets and how they are distributed. However, there are legal limitations. Certain conditions or clauses can lead to heirs successfully contesting a will.
“ Many people believe they can draft their will completely freely. In practice, however, it repeatedly turns out that certain clauses are not legally valid and lead to disputes ,” explains lawyer István Cocron.
Here are some problematic phrases that could invalidate your will.
A will can attach conditions to the inheritance, but not every demand is permissible. The courts have repeatedly ruled that certain clauses are immoral and therefore invalid.
1. Unacceptable conditions: When the heir is put under pressure
Equality clause: Partner choice as a condition?
A prominent example is the so-called equality clause. It stipulates that an heir only receives the inheritance if they marry someone from a specific group of people – for example, someone from the same social class or religion. The Federal Constitutional Court ruled that this violates the freedom to marry and is therefore inadmissible (Case No.: 1 BvR 2248/01).
Visitation rights for grandchildren
In another case, a testator wanted to ensure that his grandchildren visited him at least six times a year. Only then would they inherit. However, the Higher Regional Court of Frankfurt considered this an impermissible attempt to influence the will and declared the clause invalid (Case No.: 20 W 98/18).
Tip: Wording that restricts heirs’ freedom of choice or exerts undue pressure is risky. An alternative could be a less legally contestable incentive system.
2. “Dieterle clause”: Who determines the subsequent heir?
To manage their estate in the long term, some testators resort to the so-called “Dieterle clause”. This involves first appointing a preliminary heir who later determines who will become the subsequent heir.
The problematic aspect here is the principle of definiteness, according to which the testator must specify who is to inherit. However, recent case law shows a certain degree of flexibility: Both the Berlin Court of Appeal (Case No.: 1 W 262/22) and the Hamm Higher Regional Court (Case No.: 15 W 24/19) have deemed the clause permissible.
Lawyer Friedrich Albrecht Lösener warns, however: “Even if the courts increasingly accept these clauses, the risk remains that they will be overturned in a later ruling.” Anyone who wants to play it safe should establish a clear order of inheritance.
3. Animals as heirs? Only indirectly.
Many animal lovers want to include their pets in their will. However, legally speaking, animals cannot inherit. But there are creative solutions: For example, the inheritance can be tied to a person who agrees to care for the animal.
A well-known example is the case of Munich fashion designer Rudolph Moshammer. In his will, he stipulated that his dog Daisy must live and be cared for in his villa until his death.
4. Don’t forget the compulsory share: Who has to inherit?
Even though freedom of testation applies, there are people who definitely have a legal claim to a portion of the estate. These include:
– Spouses
– Children and grandchildren
– the parents of the deceased (if there are no children)
The compulsory portion amounts to half of the statutory share of the inheritance. Therefore, anyone wishing to disinherit family members in their will must be aware that these family members can still assert their claims.
5. Care facilities as heirs: Not permitted
Residents of nursing homes cannot name the operator or staff as their heirs. State law prohibits this to prevent potential abuse.
However, problems arise if the care home operator was unaware of the will – in which case the prohibition may be ineffective. Whether this also applies to outpatient care services is still unclear.
6. Bequest of items: When the estate is no longer available
Some testators bequeath certain items without considering that these will no longer be part of the estate at the time of death.
For example: A will stipulates that a specific property should go to a person – but this property has already been sold. In such cases, a so-called legacy of acquisition can arise, which obligates the heir to provide compensation.
“ To avoid such disputes, the will should always also stipulate what happens if a particular item is no longer available, ” advises lawyer István Cocron.
Conclusion: A will must be clearly worded.
A will is an important document for regulating one’s estate according to one’s wishes. However, invalid clauses can render it ineffective or lead to disputes among the heirs.
Our recommendation: Seek advice early to avoid mistakes. A well-thought-out will provides clarity and spares your loved ones unpleasant surprises.
