A joint will in which both parties mutually appoint each other as sole heir is popular among spouses. However, they need to be mindful of its strong binding effect.
Joint wills are very popular among spouses in Germany. These generally entail the partners mutually appointing each other as sole heir and designating a final heir for when both parties are deceased. Nevertheless, it is important to consider the strong binding effect associated with this kind of will. We at the law firm MTR Rechtsanwälte note that it cannot subsequently be unliterally amended if the parties did not have the foresight to include revision clauses.
If a joint will does not include revision clauses enabling the surviving spouse to unilaterally amend its provisions, he or she will remain bound by the joint provisions even if their situation in life has since changed, for example, if the relationship with the final heir has severely deteriorated. It is clear from a ruling of the OLG Düsseldorf, for instance, that in the absence of appropriate arrangements it is then no longer possible to unilaterally amend the provisions appointing the final heir (I-3 Wx 202/17).
In the case in question, a married couple had prepared a handwritten joint will and mutually appointed each other as sole heir. They also designated their son as the final heir. However, following the death of the husband, his widow drafted a second will, according to which another person was to be become the sole heir and her son would only receive the compulsory portion. The latter successfully brought an action against this.
The widowed mother had no longer been entitled to unilaterally amend the joint will. Even though the married couple had included the wording “the surviving spouse is not encumbered or restricted by this will and is free in every sense to make arrangements” in their will, the OLG Düsseldorf held that this did not refer to the appointment of the final heir. The Court ruled that it was not clear the married couple had agreed to a right to make changes.
This example demonstrates that revision clauses are an avenue which ought to be explored as a means of loosening the strong binding effect of a joint will. Moreover, the wording should be unambiguous and leave no room for interpretation. Lawyers with experience in the field of trusts and estates law can offer advice.
For more informations: https://www.mtrlegal.com/en/legal-advice/private-clients.html