Revocation of a previous legal declaration by the testator: If a the testator has made comprehensive provisions for the disposal of his estate in his will, This may constitute a revocation of an earlier, conflicting declaration under private law, provided that the testator is free to unilaterally withdraw from that earlier declaration at any time.
This is the case with an offer of a gift which has not yet been received by the donee. It is assumed that a testator who comprehensively regulates the distribution of their estate is aware that this revokes any earlier conflicting declarations which have not yet become binding (Federal Court of Justice (BGH) judgement of 30 January 2018, Case No. X ZR 119/15).
This decision is based on the following facts:
The claimants are the heirs and, at the same time, the executors of the deceased’s will. They are seeking an order requiring the defendant’s intervener to surrender the deceased’s securities held in a securities account managed by the intervener.
In 1976, the testator entered into the following written agreement with the intervener: upon the testator’s death, ownership of the securities account held in custody by the intervener was to pass, initially, to the intervener. Upon the testator’s death, the defendant was to acquire the right to demand that the intervener transfer the securities account, whereby the defendant was to be able to tacitly accept a gift offer from the testator, to be forwarded by the intervener, upon receipt of the notification that he had been named as a beneficiary. The testator reserved the right to unilaterally terminate the agreement vis-à-vis the intervener by means of a written declaration.
In 2007, the testator drew up a new, valid will and appointed the claimants as heirs and executors. She did not bequeath anything to the defendant or mention him in this will.
It was not until two years after the will had been probated, in May 2011, that the intervener notified the defendant of the agreement reached with the testator and transferred the contents of the securities account to him.
In July 2011, the claimants revoked the deceased’s disposition at issue.
The parties are in dispute as to whether the contents of the securities account have been validly transferred to the defendant or whether they still form part of the estate.
The two lower courts ruled in accordance with the claimant’s application. The Federal Court of Justice (BGH) also upheld this ruling.
The agreement dated 1976 between the testator and the intervener constitutes an inter vivos disposition in favour of a third party upon death. In this context, a distinction must be made between the security relationship between the settlor (in this case: the intervener) and the promisor (in this case: the testator) on the one hand, and the value relationship between the settlor and the beneficiary (in this case: the defendant) on the other. The covering relationship governs the conditions for the beneficiary’s claim for payment against the promisor, whereas the valuation relationship governs whether the beneficiary may retain the gift in relation to the testator’s heirs.
The cover ratio constitutes a contract for the benefit of a third party, under which the defendant has a claim against the intervener for the transfer of the contents of the securities account. In the present case, the value date relationship is based on a gift, which determines whether the beneficiary may retain what has been acquired in this way in relation to the claimants.
According to the Senate, no gift agreement – which could have provided a legal basis for the defendant to retain the assets – had been concluded between the testator and the defendant. This is because, by the time the intervener notified the defendant of the disposition made in his favour, there was no longer a valid offer of gift which the defendant could still have accepted.
A declaration of intent requiring acceptance, which is made in the absence of the recipient, is in any event not valid if the recipient receives notice of the revocation of that declaration either beforehand or at the same time. The Federal Court of Justice (BGH) takes the view that a revocation of an offer of a gift may also be effected by a disposition of property upon death. In the present case, this was effected by the will drawn up in 2007. Although no express revocation was made therein; rather, the revocation in this case was implied. If a testator disposes of their entire estate in their will, this is to be regarded as an implied revocation of an earlier, conflicting declaration, at least where the testator could unilaterally withdraw from that declaration at any time. In the present case, the testator had allocated in detail her „entire capital assets“ held with the intervener, as well as the properties she owned, and had also specifically named the heirs accordingly. The defendant was not mentioned anywhere in this regard. This would indicate her intention that she no longer wished to recognise any conflicting earlier dispositions and wished to withdraw from them. According to the judges, it follows from this that the testator could unilaterally rescind the agreement with the intervener at any time and revoke the offer of a gift that the intervener was to convey to the defendant.
Do you have any questions about drawing up, revoking or the validity of a will? Please feel free to make an appointment!