Problems relating to the interpretation of a joint will in the case of a blended family (Brandenburg Higher Regional Court, order of 31 January 2019, ref. 3 W 37/18)
Ambiguous wording in a will can lead to significant disputes – as this case demonstrates once again.
The Higher Regional Court of Brandenburg ruled in its order of 31 January 2019 (Ref.: 3 W 37/18), that the wording in a joint will „In the event of our joint death, we appoint our children as our heirs.“ is open to interpretation where each spouse has children of their own.
This decision was based on the following facts:
The couple were both in their second marriages. Both spouses had two children each from their first marriages. The spouses drew up a joint will (joint spousal will), which states, amongst other things: „We hereby appoint each other as heirs to our estate. In the event of our joint death, we appoint our children as heirs.“
First, the wife died; years later, the husband also died. Following the husband’s death, one of his children (A) applied to the probate court for a certificate of inheritance designating the husband’s two children (A and B) as statutory heirs, each entitled to ½. A justified his application on the grounds that the joint will contained no provision for the present case, namely the successive deaths of the spouses. In this instance, the spouses had died at different times. The provision that all children should inherit in equal shares was intended to apply only in the event of their simultaneous death.
The wife’s two children (C and D) objected to this and applied for a certificate of inheritance which would name all four children as heirs, each entitled to a quarter. The children stated, supported by witness evidence, that it had been the testators’ intention at the time the will was drawn up to to appoint all four children as final heirs, not only in the event of the spouses’ simultaneous death, but also in the event of the surviving spouse’s death at a much later date.
The probate court ruled in favour of the husband’s children and issued a certificate of inheritance designating the husband’s children as heirs, each entitled to ½. The wife’s children objected to this.
Following a hearing to examine the evidence, the Higher Regional Court of Brandenburg set aside the decision of the Probate Court. Taking into account the so-called ‘theory of implication’, the joint will is to be interpreted as meaning that the testators appointed their four children as the sole heirs of the last to die, even in the event that the two spouses die at a considerable interval from one another.
Strictly speaking, the joint will does not contain any provision for residual heirs. It is only in the event of the joint death of the testators that all the children are to inherit.
Consequently, the joint will was open to interpretation. The aim of interpretation is to ascertain the testator’s true intention. If the wording is inconclusive, the subjective meaning of the expressions and terms used by the testator must be determined. This includes „the testator’s overall conduct, their statements and actions; however, in view of the formal requirements of Section 2247 of the German Civil Code (BGB), there must be indications – even if only suggestive – be found.“
In the present case, on the basis of the witness statements, the judges concluded that, by the wording they had chosen, the spouses intended to appoint the four children as final heirs following the death of the last surviving spouse. All the witnesses consistently stated that they had spoken to the spouses on various occasions about their will and the appointments of heirs. It had always been the spouses’ wish that all the children should receive an equal share following the death of the last surviving spouse and that the estate should be divided fairly.
The wording chosen by the spouses in this case „In the event of a joint death…“ also constitutes, in view of the formal requirement under Section 2247 of the German Civil Code (BGB), a sufficient indication in the text of the will to permit the interpretation arrived at. This indication is already contained in the wording chosen itself, which refers not to simultaneous death but to death together. The Senate distinguished here between the adjectives „simultaneously“ (= close temporal connection) and „jointly“ (= together, with one another, collectively).
The appeal lodged by the wife’s children was therefore successful, and the probate court’s order was amended to the effect that all four children are heirs to the husband in equal shares.
As this case demonstrates once again, the use of unclear, layman’s terms in a will can lead to significant disputes later on. This can be avoided if you draw up your will with the help of a solicitor who takes your wishes and intentions into account.
There is a great deal to consider, particularly in the case of blended families, and the will should be worded correctly so as not to expose your loved ones to any disputes. The phrase „joint death“ would also be open to interpretation in a joint will without a blended family context, but if all the children were named as beneficiaries and there were no other wills designating different beneficiaries, it would not have the same consequences as in a blended family, where one branch of the family could be excluded if the court were to arrive at a different interpretation. Our blog post of 20 February 2019 also dealt with the interpretation of a joint will in the context of a blended family. That post focused on the meaning of „our children“.
If, therefore, you would like some support in bringing your ideas to life, Please feel free to get in touch with us!