In its decision of 20 April 2018, the Higher Regional Court (OLG) of Düsseldorf clarified that the wording “The survivor of us shall be neither burdened nor restricted by this will and may dispose freely in any way” refers exclusively to legal transactions during the survivor’s lifetime. The decision was published in abridged form by the German Association for Inheritance Law and Estate Planning (DVEV).
The case
A married couple had drawn up a Berlin Testament in which they appointed each other as sole heirs and their son as final heir. They used the wording: “The survivor of us shall be neither burdened nor restricted by this will and may dispose freely in any way.” After the husband’s death, however, the wife made a new will in which she disinherited her son and appointed another person as sole heir instead. The son objected and insisted on the binding effect of the Berlin Testament.
The decision
According to Section 2271 Paragraph 2 of the German Civil Code (BGB), in a Berlin Testament, the appointment of the final heir becomes binding after the death of the first deceased spouse and can no longer be revoked. The Higher Regional Court of Düsseldorf had to clarify whether the wording used granted the wife the right to revoke the appointment of her son as the final heir and to draw up a new will.
The court ruled that the wording was intended solely to grant the surviving spouse the freedom to dispose of the assets without restrictions during their lifetime in order to secure their livelihood. It was not intended to alter the order of inheritance or to name a new final heir. The Higher Regional Court based its decision on the presumption that the spouses likely assumed the disinherited son would receive the entire joint estate upon the death of the second spouse. There was no evidence to suggest that the spouses had any other intention. Therefore, the son’s objection was upheld.
Expert council
Lawyer István Cocron emphasizes the importance of professional advice: “ Laypersons often use wording that – as in this case – can be interpreted differently. Courts then have to interpret it, which often leads to results that are not in the testator’s best interest. Legal advice from an expert in inheritance law would have provided clarity here. It would have been possible to clearly stipulate whether the surviving spouse could amend the will or not. ”
