Interpretation of a joint will: The meaning of ‚our children‘ in a blended family (Higher Regional Court of Düsseldorf, order of 28 August 2018, ref.: I-3 Wx 6/18)
The Higher Regional Court of Düsseldorf (Decision of 28 August 2018, Ref.: I-3 Wx 6/18) In proceedings to grant a certificate of inheritance, the court had to determine who might be referred to by the term „our children“ in a joint will (spouses’ will): only the couple’s children together, or also children whom the spouses had with other partners.
The decision was based on the following facts: The testators, a married couple, had three children together: A, B and C. The wife had a daughter, D, from a previous relationship, and the husband had a son, E. In a joint will, the couple initially appointed each other as sole heirs. They also stipulated that, upon the death of the longer-living spouse, „that the inheritance be divided equally amongst our children“ should.
Following her husband’s death, the wife, as sole heir, applied for a certificate of inheritance, which was granted as requested.
Following the death of her mother, the deceased’s daughter, D, applied for a joint certificate of inheritance designating their children, A, B and C, and herself, D, as heirs, each entitled to one-quarter of the estate. D took the view that the phrase „our children“ in the will referred not only to the couple’s joint biological children, but also to herself as the testator’s child from her first marriage. A, B and C had no objections to this, so the certificate of inheritance was issued as requested. The children did not inform the probate court that the predeceased husband also had a son, E, from his first marriage.
Consequently, the son, E, applied for a certificate of inheritance in which all five children involved were to be listed as equal heirs, each entitled to 1/5. All the other children involved objected to this, stating that E had never been integrated into the family and that there had been no social contact with E. Following the separation of the predeceased husband from his first wife, his contact with E had also ceased. Daughter D, on the other hand, had lived in the couple’s shared household and had been recognised as their joint child.
After hearing all parties concerned, the probate court dismissed the application for a certificate of inheritance submitted by the son, E, as unfounded. E lodged an appeal against this decision with the Higher Regional Court. The Higher Regional Court also dismissed E’s appeal.
The Higher Regional Court ruled that the wording „our children“ chosen by the spouses did not constitute a bequest in favour of their son E. The court justified this on the grounds that the phrase „our children“ in the joint will, which was relevant to the decision, was open to interpretation, since, given that the couple’s „children“ included not only A, B and C as their joint descendants, but also D and E, the testamentary provision relating to their son E is unclear. Therefore, the testator’s actual intention must be ascertained. In the case of a joint will, the intentions of both testators must always be taken into account.
The Higher Regional Court interpreted the statements made by the parties as meaning that the term used in the joint will „our children“ „our children together“ meant. The children had testified in court that the parents had always drawn a distinction between their joint children, A, B and C, on the one hand, and the children D and E from the spouses„ first marriages, on the other. Another factor of decisive importance to the judges was that daughter D had expressly stated that she had been the one to initiate the will. She had known that her parents had specifically wanted to ensure that their joint children were provided for, because the assets had also been accumulated during the marriage. Everything had been discussed jointly – including with her. Furthermore, one of the children born of the marriage stated that their mother had shown them the will and remarked that by “our children’ she meant only the three children born of the marriage. The Higher Regional Court therefore considered it logical to distinguish between the children born of the marriage and those not born of the marriage with regard to the order of succession.
Furthermore, there is no evidence to suggest that the testator intended to name her late husband’s son, E, as an heir. She had virtually no contact with him. Nor does the fact that the daughter, D, had stated in her own application for a certificate of inheritance that the term „our children“ was not to be understood as referring solely to the couple’s biological children lead to a different decision. According to the Higher Regional Court, this circumstance cannot be used to substantiate the application made by the son, E.
However, the Higher Regional Court instructed the Probate Court to examine whether the certificate of inheritance issued to the daughter, D, should be revoked ex officio.
As this case clearly illustrates, choosing the right and unambiguous wording is crucial when drawing up a will. This is all the more true in blended families. If unclear wording is used, it can lead to unpleasant and costly legal disputes with an uncertain outcome. You can avoid this by having your will drafted by a solicitor specialising in inheritance law. We would be happy to assist you with this. Please make an appointment with us.