Divorced spouse has the right to inspect officially kept wills newly drawn up by the testator after the divorce<\/p>\n
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Spouses often set up a joint will<\/strong>. But what happens to this joint will in the event of a divorce<\/strong>? Are the dispositions made still valid? A legal regulation in \u00a7 Section 2268 (1) BGB<\/strong> according to which a joint will generally becomes invalid \u201ein its entirety\u201c in the event of divorce. Without the former spouses having to take action, their jointly drawn up last will and testament therefore becomes ineffective.<\/p>\n However, there may be exceptions to this principle, as the following resolution shows (OLG Schleswig<\/strong>, resolution dated 28 May 2018, Ref. 3 Wx 66\/18)<\/strong> shows. The decision was based on the following, abridged facts.<\/p>\n In 1975, the applicant drew up a joint will together with the testator, her husband at the time, in which the spouses appointed each other as the sole heirs of the first deceased. Their descendants were to be the final heirs. The joint will was placed in official safekeeping. The marriage was legally divorced in 1991. In 1994, the testator drew up a new, notarised will in which he appointed his second wife and, alternatively, her sons from his first marriage as heirs. He thus disinherited his first wife and their joint descendants. Both wills were opened after the testator's death and the joint will was subsequently returned to official custody. The applicant was informed of this. She then requested access to her divorced husband's new will. However, the probate court only sent the minutes of the opening of the joint will; it rejected the request to inspect the files with regard to the new will on the grounds that the applicant was neither a party to the proceedings nor did she have a legitimate interest in inspecting the files.<\/p>\n The applicant lodged an appeal against the decision of the probate court, which was recognised by the Higher Regional Court of Schleswig as an application for a court decision in accordance with the German Civil Code. \u00a7\u00a7 Sections 23 ff EGGVG<\/strong> laid out.<\/p>\n The Higher Regional Court of Schleswig came to the conclusion that the applicant's request for access to the files was justified and that she should therefore be granted the requested access to the files.<\/p>\n After \u00a7 Section 13 (1) FamFG<\/strong> the parties to proceedings have the right to inspect the files, unless this conflicts with the serious interests of a party or a third party; in accordance with \u00a7 Section 13 (2) FamFG<\/strong> third parties may be authorised to inspect the documents if they can credibly demonstrate a legitimate interest and this does not conflict with the legitimate interests of a party\/third party. The Senate came to the conclusion that the applicant could either be regarded as a party to the proceedings - in which case the right of inspection would arise from para. 1 - or that she was not a party to the proceedings - in which case she could base her right of inspection on para. 2, but would need a legitimate interest.<\/p>\n The judges were of the opinion that the applicant could be regarded as a non-party to the proceedings insofar as it concerned the safekeeping of her divorced testator's will.<\/p>\n The petitioner's legitimate interest arises from her status as an heir, which she famously enjoys on the basis of the joint will drawn up in 1975. Although Section 2268 (1) BGB contains the statutory rule of interpretation according to which a joint will becomes invalid upon divorce, this interpretation is not mandatory. According to this standard, a joint will is invalid in cases of \u00a7 2077 BGB<\/strong>, The entire content of the contract is ineffective upon dissolution of the marriage.<\/p>\n Exceptionally, however, the interpretation could show that the spouses had also made their testamentary dispositions in whole or in part in the event of the breakdown of the marriage. In this case, the joint will remains valid in this respect. Even if such reasons were not initially apparent in the present case due to the family situation, the fact that no certificate of inheritance proceedings were pending in which the applicant could have presented the aforementioned reasons should be taken into account. The petitioner's request for access to the files served precisely to enable her to clarify the content and validity of the will in order to then weigh up whether or not she should file an application for a certificate of inheritance. Her request for access to the files could also help her to clarify whether or not she wanted to oppose an application for a certificate of inheritance from a third party, e.g. the second wife, which had not yet been filed.<\/p>\n The Senate therefore obliged the probate court to carry out the requested official act. The applicant was thus granted access to the will file and thus also to the new will of her divorced husband.<\/p>\n Do you need advice or support in drawing up a joint will? Or do you have questions about other inheritance law issues, your rights, but also your obligations? Please feel free to make an appointment. We are available by telephone at 040\/300 39 86-0<\/strong> there for you.<\/p>\n