To ensure that the “final wishes” laid down in a will can actually be implemented, they ought to be defined in the most detailed manner possible, as demonstrated by a ruling of the OLG Hamm (Higher Regional Court of Hamm) (Az.: 15 W 98/14).
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London - www.grprainer.com/en conclude: Testamentary dispositions can be laid down in a will. The final will should be drawn up as clearly as possible to ensure that it can actually be implemented in accordance with the wishes of the testator, since there are limits to the interpretation of a will, as confirmed by the Oberlandesgericht Hamm.
In the instant case, the testator was in his second marriage, with two children from his divorced first marriage. He prepared a will in 2012. This provided that, following his death, the inheritance was to be dealt with in accordance with the “Berliner Testament” (Berlin will), including the remarriage clause. The will did not contain any further statements.
After his death, the wife took the view that she had been appointed the sole heir in the will and applied for a certificate of inheritance. The children opposed the application. They believed that the will did not leave any room for interpretation regarding the line of succession and also submitted an application for a certificate of inheritance. According to the rules of intestate succession, the wife ought to receive half of the estate and the children a quarter each.
Like the probate court before it, the OLG Hamm held that the wife had not been designated as the sole heir. The Court stated that neither did the will explicitly appoint the wife as the sole heir, nor was it possible to construe the testamentary disposition as such by interpreting the will. The real wishes of the testator need to be determined when interpreting a will. These were found to be impossible to ascertain in the present case; it could not be established what the testator meant by a “Berliner Testament” and he was also clearly unaware that Berliner Testaments cannot be drawn up unilaterally. Moreover, it was not possible to identify whom he wished to appoint as his heir(s) according to the OLG.
Those who want to ensure that a testamentary disposition is in fact implemented can consult lawyers who are versed in the field of succession law when drafting a will.