A joint will does not automatically imply that the testators have appointed each other as beneficiaries – this must be clearly stated
In its ruling of 9 August 2022, the Higher Regional Court of Brandenburg (Ref.: 3 W 67/22) ruled that the mere expression in a joint will of a married couple’s wish that the persons named in the will should receive a residential property following the death of the surviving spouse is not sufficient to interpret the will as meaning that the spouses intended to appoint each other as sole heirs to the entire estate upon the first death.
The partial judgement is based on the following facts:
On 4 March 2019, a married couple drew up a joint will entitled „Will, dated 4 March 2019, re: residential property and land“. The will stated, amongst other things: „We hereby direct that, following the death of the surviving owner, our house and land at the above address shall pass as an inheritance 1.) to our daughter, and 2.) to our grandchildren.“
In addition to the property, which was valued at €500,000, the couple had cash assets totalling €250,000.
Following the testator’s death, the applicant, one of the couple’s three children, applied for a certificate of inheritance stating that the testator’s wife was to receive ½ and the three children jointly were each to receive 1/6.
The probate court rejected this. It assumed that, following the first death, the spouses had intended to appoint each other as sole heirs.
The applicant, who is the couple’s son, lodged an appeal against this decision, arguing that the will does not indicate that the couple were appointed as sole heirs. Given that, in addition to the property, there were substantial further assets, the majority of the estate had not been disposed of, and it could not therefore be assumed that an appointment of heirs had taken place. Statutory succession had taken effect following the death of the first parent.
The Higher Regional Court considers the applicant’s appeal to be well-founded.
The will does not contain any provision appointing each other as sole heirs in the first instance of succession; consequently, succession has taken place in accordance with the law.
It can be inferred from the will that it was the couple’s wish that the persons named in the will should inherit the family home following the death of the surviving spouse. However, this does not justify the assumption that the couple intended to appoint each other as sole heirs to the entire estate.
For the interpretation of a will, in accordance with Section 133 of the German Civil Code (BGB) on the the testator’s true intention . An appointment of an heir that is not included in a will does not satisfy the formal requirements and is therefore void pursuant to Section 125(1) of the German Civil Code (BGB). A joint will cannot, in itself, justify the assumption that the testators have appointed one another as heirs.
After Section 2087(2) of the German Civil Code (BGB) there is no appointment of the daughter as heir for the second succession. If the will contains only bequests and no appointment of an heir, it cannot be inferred from it that there is a mutual appointment of heirs in the event of the first death.
This is determined by interpretation in accordance with Section 2084 of the German Civil Code (BGB) to determine whether an appointment of an heir has taken place. In cases of doubt, it should not be assumed that an appointment of an heir has taken place if only individual items have been bequeathed to the beneficiary. This rule of interpretation does not apply if such doubts have been resolved by a prior interpretation.
The grant from the Property presents no appointment of an heir in accordance with Section 2087(2) of the German Civil Code (BGB) . Pursuant to Section 2087(2) of the German Civil Code (BGB), in cases of doubt, it shall not be presumed that the beneficiary is to be an heir, even if he or she is designated as such, if he or she is merely individual items are directed towards.
Even where only individual items have been bequeathed, there are grounds for assuming that an appointment of an heir has been made if the testator has distributed his estate entirely on the basis of the individual assets, if he has bequeathed to the beneficiary those items which, in his view, constitute the principal assets, or if there were only legatees, and it cannot be assumed that the testator intended to appoint no heirs at all and to exclude his relatives or spouse as statutory heirs.
This may apply if the estate is, for all intents and purposes, exhausted by the transfer of the main asset of the estate, or if the whether the objective value of the remaining assets significantly exceeds their value, that the testator regarded it as his most valuable asset.
Given the wording of the heading „Residential property + land“, it was clear to the couple that they were only disposing of part of their assets. They were aware that they possessed considerable additional assets. The choice of the word „Legacy“ can only be regarded as circumstantial evidence, but is not decisive. It is not the choice of words, but the factual content that is decisive.
The relative values did not yield a different result in this case either. The cash assets were considered to be a substantial and not insignificant asset in relation to the value of the property. The property therefore by no means constituted the main part of the estate, and there was no indication that the spouses had assumed that their assets had been exhaustively divided by the transfer of the property.
The spouses cannot therefore be appointed as sole heirs. The statutory order of succession applies.
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