In the case of a so-called “Berliner Testament” (Berlin will), spouses can mutually appoint each other as sole heirs. However, one should also remember to clearly appoint the final heirs.
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London - www.grprainer.com/en conclude: Failure to clearly draft a will can give rise to disputes among the heirs. This is also true for Berliner Testaments or spousal wills.
In cases involving Berliner Testaments, the spouses generally mutually appoint each other as sole heirs. The final heirs should, however, always be appointed as well in order to prevent disputes from arising at a later date. They inherit the estate after the death of the second spouse. If no final heirs have been appointed in a Berliner Testament, this raises the question of whether under these circumstances the rules of intestate succession would apply or whether the will is to be interpreted in such a way that final heirs would in fact be deemed to have been appointed. A so-called “Pflichtteilsstrafklausel” (compulsory portion penalty clause) may serve as an indication of this.
Following a judgment of the OLG München (Higher Regional Court of Munich) of February 23, 2015, a Pflichtteilsstrafklausel can also be interpreted as an appointment of final heirs (Az.: 31 Wx 459/14). In the case in question, the spouses had mutually appointed each other as sole heirs in a Berliner Testament. After the death of the first spouse, the surviving spouse was supposed to have unrestricted disposal of the estate. The will also included a Pflichtteilsstrafklausel, which stated that the spouses’ three children were not to avail themselves of their entitlement to a compulsory portion after the death of the first spouse. Should a child nonetheless demand his compulsory portion, that child would not be entitled to anything beyond the compulsory portion even after the death of the second spouse. The married couple had not appointed final heirs, but each of the children were to be treated equally.
However, following the death of her husband, the wife appointed her daughter as her sole heir. Her brothers successfully challenged this. The OLG München held that it was not possible to infer the appointment of final heirs from the Pflichtteilsstrafklausel alone, yet the clause together with the equal treatment of the children if they did not assert their compulsory portion could amount to the appointment of all three children as heirs.
In order to ensure that the final will is actually implemented in accordance with the wishes of the testator, it should always be unambiguously drafted. Lawyers who are competent in the field of succession law can assist with questions pertaining to wills or contracts of inheritance.