02. Oct 15

Challenging a Berliner Testament

Revoking a joint will (Berliner Testament) enables it to be rescinded. For this to happen, the spouse needs to have received effective notice of the revocation.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London -  conclude: In the case of a Berliner Testament (Berlin will), spouses mutually appoint each other as sole heirs and usually the children as the final heirs. If the marriage is dissolved, it is normally the case that the will becomes invalid. Having said that, it is also possible for both parties to provide for the continued validity of the testamentary disposition after a divorce.

This was the case in an instance heard before the Oberlandesgericht Hamm (Higher Regional Court of Hamm). A married couple had mutually appointed each other as sole heirs and their son as the final heir. Additionally, they arranged for the continued validity of the will in the event of a divorce. They divorced several years later. The man remarried and prepared a notarial will with his second wife in which he stipulated, inter alia, that he revoked the first will. However, the first wife did not receive notice of this revocation.

A dispute emerged between the two women regarding the inheritance following the death of the husband. The second wife declared the rescission of the first will on the basis that she had been overlooked as a beneficiary to a compulsory portion of the estate. The OLG Hamm found in her favour (Az.: 15 W 14/14), stating that although the first will had not become invalid following the divorce by virtue of being supplemented and the revocation had not been carried out effectively by means of the new will, the challenge was nonetheless successful because the second wife became entitled to a compulsory portion when the husband passed away. This had not been accounted for in the first will. In doing so, the OLG proceeded on the assumption that the testator would not have overlooked his second wife. It said that the challenge would only have been dismissed if it had been possible to assume that the testator had drawn up the testamentary disposition in this way knowing of the future factual situation. The Court stated that there were no such indications in this case.

In order to prevent subsequent inheritance disputes, it is necessary to be mindful of many uncertainties when preparing a will. This is particularly true for cases involving Berliner Testaments, as these cannot be amended unilaterally. Lawyers who are versed in the field of succession law can ensure that a will is “watertight”.

For more informations: https://www.grprainer.com/en/legal-advice/private-clients/law-of-succession/last-will-and-testament.html

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