08. Dec 16

Negative will: Clear arrangements should also be made when excluding someone from inheritance

A will not only provides the opportunity to designate heirs but also to exclude people from the inheritance. It is not necessary to mention the heirs in a so-called “Negativtestament” (negative will).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: With the help of a will or contract of inheritance, testators are able to do more than simply appoint who will inherit their estate. They can also determine that certain relatives shall not inherit. In the case of what is termed a “Negativtestament”, it is not necessary to designate heirs. Having said that, the testator should take care even with a negative will to word things as precisely as possible so that the testamentary dispositions can be implemented in accordance with his or her wishes.

A case in point came before the Oberlandesgericht (OLG) Düsseldorf [Higher Regional Court of Düsseldorf], which had to investigate the wishes of a testatrix that had excluded relatives from her inheritance in a negative will (Az.: I-7 U 77/14). This single woman had explicitly mentioned two specific descendants of her great-grandparents by name as well as their successors in excluding them from the line of succession in a will she drafted in 1976. Moreover, she had made arrangements stating that other distant relatives were also not to receive any of her assets. She did not designate who was to inherit.

Following her death, a second cousin of hers laid claim to the substantial inheritance, pointing out that she had not been explicitly mentioned by name for the purposes of being excluded from the line of succession and had also been in contact with the deceased. She therefore argued that she ought not to be viewed as a distant relative.

However, the OLG Düsseldorf took a different view: Kinship is defined by law. Accordingly, the second cousin was a distant relative. The Court held that the closest lineal relative in common was a great-grandfather of the cousin, someone who the testatrix had not even personally known. Thus, the OLG was in no doubt in finding that the second cousin was another distant relative who ought to be excluded from the inheritance in accordance with the wishes of the testator. The fact that the two women had been in personal contact did not change this.

To prevent inheritance disputes from occurring, the arrangements laid out in a will should be worded as precisely as possible. Lawyers who are experienced in the field succession law can advise on all matters pertaining to wills and contracts of inheritance.

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