Paper clutter: A valid joint will can also be used in two individual wills can be seen, even if – and in this case precisely because – they were originally written on paper and were (at some point) cut up.
The Higher Regional Court of Schleswig ruled in its order of 28 May 2018 (Ref. 3 Wx 70/17), that a testamentary disposition originally drawn up as a joint will remains valid despite having been split up and has not been revoked.
Also two separate, externally Unrelated individual wills may constitute a single document in the legal sense and therefore form a joint will, provided that their internal relationship is otherwise unambiguous.
This decision was based on the following facts:
The parties involved in the proceedings are the testator’s wife and his granddaughter. Both believe they have become sole heirs. This was due to the existence of two different wills.
In 1986, the husband and wife each wrote an individual will, which were almost identical, on a single sheet of A4-sized paper, one below the other, and in each of these wills they appointed themselves as sole heir. Later (the exact date can no longer be determined), this sheet of paper was cut up, resulting in two sheets approximately DIN A5 in size. Consequently, both dispositions remained in force as individual wills.
In 2013, the testator stipulated that his granddaughter should be his sole heir, thereby disinheriting his wife.
Following the testator’s death, both parties filed conflicting applications for a certificate of inheritance. The wife applied for a certificate of inheritance designating her as the sole heir. She argued that the original will, dated 1986, was a joint will which could not be unilaterally amended by her husband.
The granddaughter contested this, claiming that she had become the sole heir. She argued that the date on the original part of the wife’s will had been backdated in order to give the impression of a joint will. Furthermore, she argued that cutting up the sheet of paper on which the wills were written had nullified their joint nature. In addition, the testator was no longer aware of the existence of these original wills, as they had been hidden in the loft of the house, to which he had no access due to his mobility impairment.
The probate court granted the wife’s application. The granddaughter lodged an appeal against this decision.
However, the Higher Regional Court of Schleswig also concluded that the wife should be issued with a certificate of inheritance as the sole heir of the deceased. The 1986 will, which was validly drawn up and was not amended or revoked by the deceased’s subsequent testamentary disposition, is decisive for the succession.
The will dated 1986 was binding on the testator as part of a joint will with his wife. For her part, she had, in a will dated the same day, appointed him as her sole heir. The spouses’ testamentary dispositions were reciprocal and thus became binding on the surviving spouse following the testator’s death.
The Senate assumed that the two separate wills had been drawn up at the same time. The court ruled out the possibility that the wife’s will had been backdated, given her current, age-related handwriting. This fact, together with the fact that both individual wills are almost identical in wording, was taken as an indication of the spouses’ intention at the time to make a joint will.
However, what was of decisive importance to the Senate in the present case was that – contrary to first impressions – both wills formed part of a single document. In principle, it is not sufficient „if wills contained in two separate documents were drawn up on the same day and at the same place and are essentially identical in content and wording“. The intended joint nature must still be expressed in some form – for example, through the use of the words „we“ or „jointly“. If no such indications are present, it is possible that the spouses may have coordinated the drafting of their wills with one another. However, this does not automatically mean that they intended to draw them up as a joint will.
A different rule may apply „where the joint nature of the will is apparent from the context of the document. If spouses appoint each other as heirs in wills that, whilst spatially separate, are set out on the same sheet of paper, it is sufficiently clear from the spatial grouping and the simultaneous drawing up of the wills that they intend to make a joint will.“.
This was the case here. The individual wills are each on a single sheet of this format, one of which has a wavy or serrated edge at the bottom and the other at the top. Both edges match. The Senate therefore assumed that the sheets must originally have been the two halves of a single DIN A4 sheet. The time at which they were cut apart, however, was deemed irrelevant.
Consequently, despite the will having been cut up, it still constituted a joint will with mutual appointment of heirs (a so-called ‘Berlin will’).
Nor had this been revoked. In the present case, the (careful) cutting up of the will did not constitute an act of revocation. There is no evidence in this case of the testator’s intention to revoke the will, as the two separate parts of the will were not destroyed but were kept (together).
Nor is it relevant whether the testator mistakenly believed the joint will to have been revoked or whether he had simply forgotten about it. In either case, it would remain valid.
So the wife did in fact become her husband’s sole heir after all, even though he apparently no longer wanted that.
This case demonstrates once again how important it is to seek legal advice when drawing up a will. This applies in particular to the drafting of a joint will, which can indeed be revoked in accordance with the relevant legal provisions.
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