OLG Bamberg: Berliner Testament cannot be unilaterally altered

Spouses that mutually appoint each other as sole heirs in what is termed a "Berliner Testament" (Berlin will) need to be mindful of the binding effect associated with this kind of joint will.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: The so-called "Berliner Testament" is a special type of joint will in which spouses designate each other as sole heirs and typically any children they have in common as final heirs. The primary purpose of this kind of spousal will is to ensure material security for the surviving spouse, as the children are not initially entitled to a share in the estate. Indeed, they are not taken into account until after the death of the second parent.

That being said, spouses that opt for this type of will ought to bear in mind that a Berliner Testament has a strong binding effect. It cannot be unilaterally altered or replaced with a new will. That was the verdict of the Oberlandesgericht Bamberg (Higher Regional Court of Bamberg) in its ruling of November 6, 2015 (Az.: 4 W 105/15).

In the case in question, the spouses had prepared a Berliner Testament in which they mutually appointed each other as sole heirs. Their four children were designated as final heirs and supposed to receive equal shares in the inheritance following the death of the second parent. Some time later, they drafted a supplement to the will (invalid due to being typewritten), according to which the son was to take over the "Anwesen" (estate/property). After the death of the wife, the husband drew up another notarial will in which he appointed the son as his sole heir. The latter"s siblings considered this second will to be invalid.

The OLG Bamberg found in favour of the siblings, stating that the father was bound by the dispositions contained within the joint Berliner Testament. The Court went on to say that alterations would only have been possible if the spouses had authorized each other from the outset to change the appointment of final heirs after the death of the first spouse. However, because this was not the case here, it was held that the four children would receive equal shares in the inheritance.

For the avoidance of any doubt regarding the testamentary disposition, lawyers who are versed in the field of succession law can advise on preparing a will or contract of inheritance.

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