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The Berlin-style will (Berliner Testament) – Dispositions by childless married couples

In a Berlin-style will (Berliner Testament) spouses mutually appoint each other as heirs and determine that the mutual estate will devolve upon a third party only after the death of the survivor. If the married couple do not reserve the right, after the death of a spouse, for the survivor still to be able to amend this disposition subsequently then, after the death of the spouse who dies initially, this disposition may not be amended. Recently, the Higher Regional Court of Düsseldorf had to rule on the interpretation of the interdependency of the dispositions when distant relatives are appointed.

In this case, in 1997, the married couple had initially - on the basis of a handwritten will - mutually appointed each other as sole heirs “in the event of our death”. In 2004, the two had then made a further will and had appointed several individuals as co-heirs, among others, a niece of the testator as well as a nephew of the testator’s wife. Following the death of the wife, the testator had drawn up another will, in 2015, and had drawn up a different disposition as regards the final heirs. The (deceased) wife’s nephew, who had been considered to be a legal heir in the 2004 will, applied for a certificate of inheritance that showed that he was the sole heir. The local court rejected this and the reason that it provided was that, in 2015, the testator had drawn up a different will that was valid.

However, in its ruling of 11.4.2022 (case reference: I-3 Wx 82/21), the Higher Regional Court concluded that, in a case where marriage partners that had remained childless had mutually appointed each other in a joint will as sole heirs and relatives on both sides as final heirs, the testamentary dispositions were interdependent in several respects. In the absence of other indications, this interdependency relates to the married couple mutually appointing each other as sole heirs, mutually appointing and designating their own relatives as final heirs as well as the appointment of final heirs as such.

Outcome: The nephew was able to obtain a certificate of inheritance on the basis of the 2004 will although the court established that, together with his wife, he had merely become a co-heir.

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