Decision of the OLG Celle on the Effect of a Later Individual Will
The Oberlandesgericht Celle (OLG Celle, Higher Regional Court of Celle), by order of 30 July 2026 – 6 W 92/26 – ruled that an individual will made by one spouse may be valid even though a joint spousal will had previously been executed. The decisive factor was that, at the time of death of the last surviving spouse, the joint will no longer had any binding effect.
The central issue was whether a later appointment as sole heir by individual will is precluded by an earlier appointment of final heirs in a joint will. The OLG Celle rejected this under the specific circumstances of the case.
Starting Point: Joint Will of the Spouses
Mutual Appointment as Heirs and Final-Heir Provision
The spouses had initially executed a notarised joint will. In it, they appointed each other as heirs for the first death. For the death of the longer-living spouse, they designated their two daughters as final heirs.
At the same time, the will contained an opening clause. The spouses reserved the right that, after the death of the first spouse to die, a different disposition of the estate could still be made. The appointment of the two daughters as final heirs was to apply only if the longer-living spouse did not make a different testamentary disposition.
Subsequent Disposition by the Wife
Five years after executing the joint will, the wife revoked her dispositions. The notarised copy of the declaration of revocation was served on her husband, who had meanwhile fallen ill.
At the same time, she executed a notarised individual will. In it, she appointed only one of the two daughters as her sole heir. One year later, the husband died first, and subsequently the wife died.
Dispute over the Certificate of Inheritance
Application for a Sole-Heir Certificate of Inheritance
The daughter appointed as sole heir in the individual will applied for a certificate of inheritance identifying her as sole heir. The Amtsgericht (Local Court) announced that it would issue the certificate of inheritance.
The other daughter challenged this by way of complaint. She was unsuccessful before the OLG Celle.
No Invalidity by Analogy to § 2289 (1) Sentence 2 BGB
In the view of the OLG Celle, the appointment as sole heir in the individual will was not invalid pursuant to a corresponding application of § 2289 (1) sentence 2 BGB (German Civil Code). It is true that this provision may be applied by analogy to dispositions in joint wills that have become binding.
In the specific case, however, the date on which the later individual will was executed was not decisive. Rather, the decisive question was whether the wife was still bound by the original dispositions in the joint will at the time of her death.
Significance of Mutuality
Originally Mutual Disposition
The mutual appointment as heirs in the notarised joint will was initially structured as a mutually dependent disposition. Mutually dependent dispositions may have a binding effect after the death of one spouse and thereby restrict the surviving spouse’s later testamentary freedom.
However, the OLG Celle made clear that a later testamentary disposition that contradicts a mutually dependent disposition is not void from the outset. The execution of a joint will containing mutually dependent dispositions restricts testamentary freedom, but it does not eliminate the testator’s testamentary capacity.
Relevant Time for Determining Impairment
For the assessment of whether a later disposition impairs the earlier mutually dependent disposition, the OLG Celle referred to the time of the wife’s death. At that point, in the court’s view, there was no longer any binding effect in respect of the appointment of final heirs under the joint will.
In doing so, the court also relied on the legal principle underlying §§ 2257, 2258 (2) BGB. Accordingly, a later testamentary disposition can take full effect if the earlier testamentary binding effect no longer exists. In that case, there is no longer any impairment within the meaning of § 2289 (1) sentence 2 BGB.
Effect of the Reservation of Amendment
Permissibility of Releasing the Surviving Spouse
According to the OLG Celle, the reservation of amendment contained in the joint will was permissible in light of testamentary freedom. The spouses had stipulated that the appointment of the two daughters as final heirs should apply only if the longer-living spouse did not make a different testamentary disposition.
As a result, at the time of her death the wife was no longer bound by the earlier final-heir provision. According to the interpretation of the will, the predeceased husband had left it to her discretion how she wished to make a different disposition for the final-heir succession.
Also Covers an Individual Will Executed Before the Succession Occurred
According to the decision of the OLG Celle, the reservation of amendment is not limited to a disposition that the surviving spouse executes only after the death of the other spouse. It also covers a deviating will that was executed during the other spouse’s lifetime but only takes effect after that spouse’s death.
In the court’s view, the wording “the longest-living spouse” indicated that the provision concerned a disposition by the surviving spouse that was intended to take effect later. The wording of the will did not indicate that such a disposition should be disregarded if it had already been executed during the other spouse’s lifetime.
A renewed testamentary disposition by the widow after her husband’s death was therefore not required.
Legal Assessment of the Decision
The decision highlights the importance of reservations of amendment in joint spousal wills. Whether an earlier provision still has binding effect at the relevant time may be decisive for the validity of a later disposition.
Key aspects of the decision were:
- the notarised joint will originally executed,
- the spouses’ mutual appointment as heirs,
- the appointment of the two daughters as final heirs,
- the expressly included reservation of amendment,
- the wife’s later notarised individual will,
- the time of the wife’s death as the relevant time for assessment.
In this regard, the Senate distinguished between testamentary capacity and testamentary freedom. The wife’s testamentary capacity was not eliminated by the joint will. Her testamentary freedom was comprehensively opened up by the reservation of amendment with regard to the final-heir succession.
Significance for Inheritance-Law Structuring
The decision shows that the precise wording of a joint will can have significant consequences for later dispositions. In particular, reservations of amendment may determine whether a later individual will validly takes effect or fails because of a binding appointment of final heirs.
For purposes of interpretation, the content of the specific testamentary provision is decisive. In the case decided, the wife’s deviating disposition, which had already been executed during her husband’s lifetime, was sufficient because the joint will allowed her to make a different testamentary disposition for the final-heir succession.
MTR Legal Rechtsanwälte advises companies, investors and high-net-worth individuals also on complex issues of succession planning, the interpretation of testamentary dispositions and the enforcement of inheritance-law positions. Further information can be found at Legal advice in inheritance law.
