Interpretation of a private will: Preliminary and subsequent inheritance: According to the Munich Higher Regional Court, in its ruling of 13 November 2018, ref. no. 31 Wx 182/17, a cohabiting partner is only a non-exempt preliminary heir
Hands-written wills can often lead to undesirable consequences following the testator’s death, which the testator may not have intended or even considered. For example, the Munich Higher Regional Court recently ruled that the wording „I (…) hereby direct that, in the event of my death or incapacity, my partner shall inherit my entire estate. (…) My partner shall manage the estate on behalf of my children A, B and C.“ This means that the partner is not the sole heir with unrestricted rights, but merely a non-exempt preliminary heir (Munich Higher Regional Court, order of 13 November 2018, ref.: 31 Wx 182/17).
The testator was married and had two children, A and B, with his wife. The testator had another child, his minor daughter C, with his partner. The testator’s valid, privately written will read as follows:
„Will
I (…) hereby direct that, in the event of my death or legal incapacity, my partner shall inherit my entire estate.
Mr G.V. is to arrange for the dissolution and settlement of the estate in such a way that my partner suffers no loss. My partner is to manage the estate on behalf of my children, A, B and C.
By this letter, my partner is granted power of attorney over all my company accounts and all my personal accounts.
(Place), 19 November 2009 Signature“
Following the testator’s death, the partner applied to the probate court for a certificate of inheritance designating her as the sole heir with unrestricted rights. The probate court rejected this application. The appeal lodged by the partner against this decision was subsequently withdrawn following a directive from the Higher Regional Court.
The partner then amended her application for a certificate of inheritance to the effect that she was the exempt preliminary heir and the testator’s children were the subsequent heirs. The partner gave as her reason „that the deceased had bequeathed his entire estate to her, intended to provide for her financial security, and had granted her unrestricted access to all his accounts.“ Furthermore, the three children had still been minors at the time the will was drawn up, so that it would have been in accordance with the testator’s wishes to regard the partner as an exempt preliminary heir, thereby avoiding the appointment of a supplementary guardian. However, the probate court also rejected this application.
The Higher Regional Court of Munich also dismissed the appeal subsequently lodged by the partner. It justified this on the grounds that the requirements of the Section 2136 of the German Civil Code (BGB), which provides for the exemption of the preliminary heir, were not present. Admittedly, the exemption of the preliminary heir need not necessarily be expressly stipulated in a will. Rather, it may also arise from an interpretation of the testamentary disposition. However, the intention to exempt the preliminary heir must at least be implied or implicit in the testamentary disposition in some way. The decisive factor is which of the testator’s interests prevails: the interest in safeguarding the preliminary heir (in which case an exemption for the preliminary heir is to be assumed) or the interest in preserving the estate’s assets (in which case a restriction on the preliminary heir is to be assumed).
On this basis, the Munich Higher Regional Court ruled that there was nothing in the will to suggest that the testator had intended the partner to be exempt from the restrictions on the preliminary inheritance pursuant to. Sections 2113 of the German Civil Code (BGB) be exempt. Rather, the Munich Higher Regional Court inferred from the will the testator’s intention that his estate should remain as intact as possible for his three children. Ensuring this would only be possible if the partner were to be regarded as a preliminary heir not exempt from the statutory restrictions.
Neither the wording of the will, according to which the partner was to inherit „the entire estate“, nor the granting of power of attorney in her favour, implies that the preliminary beneficiary is exempt from the statutory restrictions. The grant of power of attorney could also be interpreted as meaning that the testator wished to ensure that his partner had the means to act „in all eventualities“. In this regard, the judges referred in particular to the sentence preceding the grant of power of attorney „My partner is to manage the estate on behalf of my children A, B and C.“ interpreted as meaning that, ultimately, the testator’s children should benefit from their father’s estate.
Nor did the fact that all three children were still minors at the time the will was drawn up – and that this might therefore have necessitated the appointment of a supplementary guardian – lead to a different outcome. In the present case, the testator appointed not only his partner’s daughter as a reversionary heir, but also his children from his marriage. None of the children was therefore to be favoured or disadvantaged. In this respect, it is clear from the testator’s intention that the partner should not have unrestricted access to the estate’s assets. A non-exempt preliminary inheritance serves to counteract or prevent any preferential treatment of the partner’s daughter.
This case demonstrates once again how important it is to seek legal advice before drawing up a will. This is because, following the testator’s death, it is often no longer possible to ascertain the testator’s exact wishes. This can lead to uncertainty or legal disputes, which can be avoided by having a solicitor assist with the drafting of the will.
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