Interpretation of a will which designates as heir the person who cared for and looked after the testator until his death – nullity of a will on the grounds of vagueness
In its ruling of 25 September 2023, the Munich Higher Regional Court (Ref.: 33 Wx 38/23e) has ruled that a will is void if the wording of the disposition is so vague that its interpretation must remain inconclusive. One may only rely on a „minimum meaning“ of the terms used by the testator if it is established that the testator used them in precisely that sense. The statement „[whoever] cares for and looks after me shall receive my entire estate“ is not sufficient.
The decision is based on the following facts:
The testator died in 2021, childless and widowed. She had drawn up a notarised inheritance agreement with her husband, who predeceased her in 1983, in which they appointed each other as sole heirs in the event of the first death and which granted the surviving spouse the right to amend the will in full in the event of the second death. In 2011, the testator subsequently drew up a private will with the following content: „My last will and testament! The person who cares for and looks after me until my death shall receive my entire estate! At present, this is: Ms … (Party 1), residing at … I am of sound mind. Signature“. Following the testator’s death, Party 1 applied to the probate court for a certificate of inheritance. The court announced that it would issue a certificate of inheritance but suspended its immediate effect. After the complainant lodged an appeal, which the probate court dismissed by order, it referred the case to the Senate.
The Higher Regional Court set aside the order following the appeal. The application for a certificate of inheritance submitted by Party 1 was rejected.
There was no doubt as to the testator’s authorship of the will. However, the will did not contain any provision appointing the first party as a beneficiary. Although this is mentioned by name, However, the names were given merely by way of example. The testator merely set out the conditions that an heir must fulfil and stated that the first party currently meets those conditions. This follows from the interpretation of the text. In the case of the Interpretation of wills in accordance with Section 133 of the German Civil Code (BGB) what matters is determining the testator’s true intention, without being bound by the literal meaning of the wording. In determining whether a person is to be appointed as an heir or not, the key factors are who, according to the testator’s intention, is to administer the estate and settle the estate’s debts, and whether the beneficiary is to acquire direct rights to the estate. The word „at present“ in the will makes it clear that the testator did not yet wish to definitively name her legal successor. Taken together with the provision that her estate was to go to the person who „cares for and looks after“ her, it follows that the first party was mentioned merely by way of example and was not intended to be definitively named as an heir. The Senate therefore concluded that the The testator did not appoint a legal successor. Based on the criteria she had set, no one could be identified either. The identification of a person, who is to receive a bequest by way of a testamentary disposition, must not be left to someone else. This is stated in Section 2065(2) of the German Civil Code (BGB): „The testator may not leave it to another person to determine the person who is to receive a bequest, nor the subject matter of the bequest.“ However, provided that the testator’s intention can be ascertained through interpretation, this does not constitute a case of an impermissible determination of the beneficiary by a third party. The interpretation of a will is not a case of Section 2065(2) of the German Civil Code (BGB). Section 2065 of the German Civil Code (BGB) However, it does intervene where the wording of the will is so vague that any interpretation is bound to be inconclusive. Even by way of interpretation, it was not possible in this case to determine which criteria, according to the testator’s intention, would have to be met in order for an heir to be appointed. It is unclear what time frame is meant by the phrase „until my death“. The person responsible for the testator’s care from the time the will was drawn up could fall within this time frame. It is equally conceivable that assuming responsibility for care at a later date would be sufficient. Furthermore, it remained unclear whether uninterrupted care was required, and what exactly the testator meant by the phrase „cares for and looks after“. As it was not possible to determine the timeframe within which „care and support“ were to be provided, nor what this entailed in practical terms, it was ultimately impossible to establish to which person these criteria applied.
In order to prevent such difficulties of interpretation and ambiguities – which ultimately led the court to conclude that no appointment of an heir had taken place – it is advisable, when Drawing up a will seek advice. We’d be happy to advise you on all issues relevant to inheritance law and any issues. Please book an appointment. You can contact us by email at willkommen@gwgl-hamburg.de or by telephone on 040/300 39 86-0 We’re here for you and look forward to hearing from you or reading your messages.