The Higher Regional Court (OLG) of Düsseldorf clarified in its decision of April 20, 2018, that the wording ” The survivor of us shall neither be burdened nor restricted by this will and may dispose of his assets freely in any way ” refers exclusively to legal transactions during the testator’s lifetime. This decision was published in abbreviated form by the German Association for Inheritance Law and Estate Planning (DVEV).
The case
A married couple had drawn up a joint will (Berliner Testament) in which they appointed each other as sole heirs and their son as the final heir. They used the following wording: ” The survivor of us shall neither be burdened nor restricted by this will and may dispose of it freely in any way. ” After the husband’s death, however, the wife drew up a new will in which she disinherited her son and instead appointed another person as sole heir. The son objected to this, insisting on the binding effect of the joint will.
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. ”
