A will should always be worded clearly to prevent misunderstandings that could lead to a last will and testament being executed in manner that is inconsistent with the testator’s wishes.
In Germany, the rules of intestate succession kick in automatically in the absence of a will or contract of inheritance, and the end result may not be in line with the deceased’s expectations. One way of making sure that the estate is distributed as they envisaged is for them to prepare a will. Commercial law firm and trusts and estates specialist MTR Legal Rechtsanwälte stresses the importance here of ensuring that the testator’s last wishes can be clearly identified as a will so that their last will and testament is executed as intended.
If the wording is unclear or ambiguous, it will be necessary for the will to be interpreted by a court. One such example is a ruling of the Oberlandesgericht (OLG) [Higher Regional Court of] Brandenburg from February 20, 2023. In that case, the court took the view that by giving someone a gift, the testator had intended to appoint the recipient as their heir. This is despite the fact that it was not possible to identify the relevant document as a will (case ref.: 3 W 31/22).
The testator in question was divorced and had only been in sporadic contact with his son. He left behind a house, two thirds of which belonged to him, while the rest belonged to a good friend of his. Both of them lived in their own parts of the house. The testator also left behind a handwritten note, complete with his signature and the relevant date, stating that he would “gift” his share of the house to the co-owner of the property should he pass away suddenly.
Having concluded that the document did not constitute a will, the probate court rejected the friend’s application for a certificate of inheritance, finding that he had not been validly appointed as an heir.
His subsequent appeal was granted by the OLG Brandenburg. Even though the document was not designated as a (last) will (and testament) and did not include terms such as “heir” or “estate”, the court ruled that the testator had in fact intended for his share of the house to go to his friend following his death. In doing so, the OLG Brandenburg interpreted the document as a will.
Misunderstandings about the testator’s last wishes can be avoided through clear wording. MTR Legal Rechtsanwälte can assist in drafting a will or contract of inheritance.