26. Feb 18

OLG Bremen: Right reserved in a joint will to make amendments can be restricted

The right reserved in a joint will to make amendments can be made conditional on the approval of a third party. That was the verdict of the Oberlandesgericht (OLG) Bremen [Higher Regional Court of Bremen].

To provide the surviving spouse with financial security, spouses often draw up a joint will mutually appointing each other as sole heirs and usually their children as final heirs. We at the commercial law firm GRP Rainer Rechtsanwälte note that the joint provisions have a strong binding effect and cannot be unilaterally amended. Notwithstanding this, the surviving spouse can be granted the right to make amendments. On the other hand, a ruling of the Oberlandesgericht Bremen from August 30, 2017 shows that it is possible to restrict this right (Az.: 5 W 27/16).

In the case in question, a married couple had prepared a joint will and mutually appointed each other as sole heirs, with the children and grandchildren being designated as the final heirs. The surviving spouse was granted a right to make amendments pursuant to which he or she was allowed to make changes to all aspects of the will as well as establish new testamentary provisions. This right was restricted in that amendments could only be made if approved by the executor. After the wife had passed away, her husband prepared a notarized individual will that deviated from the joint will. For example, it appointed one of his daughters as a revisionary heir of the other children. He did not, however, coordinate this change with the executor.

A dispute subsequently emerged following the testator’s death. The daughter who according to the individual will was then only to become a revisionary heir demanded that the certificate of inheritance be revoked, arguing that her father’s individual will was invalid because the amendments had not been arranged together with the executor as required by the joint will. The OLG Bremen ruled in her favour, concluding that the individual will was invalid because the changes ought not to have been made without the executor’s approval.

The OLG clarified that a right reserved in a joint will to make amendments can be made conditional on the approval of a third party, as it was said to be possible to apply arbitrary restrictions to the right to alter joint provisions.

To avoid disputes among heirs, the provisions in a will or contract of inheritance should always be clearly worded. Lawyers who are experienced in the field of succession law can offer advice.

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