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The Berlin Testament

The Berlin Testament in questions and answers:

What is a joint will, a spouse's will and a Berlin will?

Spouses under German law do not have to testify in separate documents, but can use their last will collectively Write it down in the same document (§§ 2265, 2267 BGB).
This also applies to registered life partners (Section 10 (4) LPartG).

This is why the generic terms “joint will” or “spouse's will” have emerged for this particular form of will.

In contrast, the terms frequently used in the population "Mutual testament" or "Mutual will" are at least imprecise, because for the joint will it is only important that the spouses want to testify together, not also that they turn something to each other or even commit each other to inherit.

Wills of will in the Spouses

The spouse's will, however, must have wills in the Spouses included!
It is sufficient if only one inheritance, the so-called First death, is regulated.

Example:
"We, spouses A and B, set each other, the first to die, the longer-living of us, to be sole heirs."

However, the spouses can also regulate both inheritance cases, namely the first and the Ultimate death.
Various design options are available to you for this (unit, separation, legacy solution).

Berlin Testament

As "Berlin Testament" one describes a spouse's will in which the spouses mutually act as heirs of each of the first deceased of them [1. Inheritance] and at the same time stipulate that after the death of the last deceased of them [2. Inheritance] the entire estate should go to a third party (usually the children together) (Section 2269 BGB).

Example:
“We, spouses A and B, make each other, the first to die the longer-living of us, to be sole heirs.
We call our children C and D in equal parts to be heirs of those who have lived longer. "

In the Berlin Testament, two inheritance cases according to the so-called "One-size-fits-all solution“Regulated: The surviving spouse is initially Full inheritance of the first to die and the third (only) after the death of the longer-living Final heir of the entire remaining estate.

Expert tip from specialist lawyer for inheritance law Ingo Lahn:
Other or complementary designs are often recommended here!
The Berlin Testament can be disadvantageous for larger assets because the same asset is subject to inheritance tax twice, namely once when the assets are transferred to the surviving spouse and then when the assets are later transferred to the final heir (s).
Also can Children's entitlement to compulsory portion assert against the survivor, since they are excluded from the legal succession at the first inheritance, i.e. disinherited.
In particular, because of the Binding effect joint dispositions, further clauses are considered!

How is a joint or Berlin will drawn up?

In order to draw up a joint spouse's will, it is necessary, but also sufficient, that

  • one the spouses hand the will writes, provide and sign the place and date,
  • and then the other Spouse also made the joint declaration by hand signed.

There should the co-signing spouse also indicate the time (day, month and year) and at which place he / she added his / her signature.

However, they are Place and time information not part of the declaration of intent and thus no prerequisite for effectiveness. If a testator does not state when and where he co-signed the will, this does not lead to the ineffectiveness of the joint will (Düsseldorf Higher Regional Court, Decision of 03.01.17, I-3 Wx 55/16, marginal number 24).
The place and date do not have to be written by hand. They can even be prescribed or stamped with the typewriter.

A joint will can also go through successive declarations of the spouses are established if the will for the joint establishment is still present at the time of the last declaration by both parties (see OLG Düsseldorf, loc.cit., marginal no. 25).

Does a joint will have a binding effect?

If the spouses have made mutual dispositions in a joint will, this already creates a very strong bond:

  • So has the nullity or the revocation Such an alternating disposition also results in the ineffectiveness of the other.
  • With a new will, one spouse cannot unilaterally revoke his or her reciprocal dispositions while the other is alive. He can only get through it notarized declaration towards the other spouse withdraw.
  • A joint will given in official custody can only be withdrawn by both spouses.

If one of the spouses dies, they snap "Attachment trap" to, because:

The right of revocation expires with the death of the other spouse!

This means that after the death of a spouse, the surviving spouse can no longer effectively dispose of otherwise due to death (apart from issuing orders for division); he can no longer unilaterally change the heir appointment, legacy order, edition or choice of law that has been decreed on the basis of a change in death due to a later disposition (provided the spouses do not Subject to change have been included in the will for the benefit of the survivor; see below)!

example: F is married to the childless M and brought her daughter T into the marriage.
In their “Berlin Testament”, the married couple mutually support themselves as sole heirs after each of the first deceased and determine that the final heir of the last deceased should be.

Case variant 1: F dies. M later appoints his lover G as his sole heir in a new testament. After M dies, T and G argue over who became heir to M.
Here both the individual substitutions and the substitution of the M by F and the substitution of the T by M in the event of his survival were mutually related.
Since after F's death the mutual disposition (inheritance of T) has become binding for M, his will, with which he has appointed G as sole heir, is ineffective. T has become his sole heir.

Case variant 2: M is dying. In a later will, F appoints her lover L as her sole heir. After F dies, T and L argue about who became heir to F.
In this case, only the mutual sole heir appointment was "mutually exclusive", but not the final heir appointment of the T by F, because the disposition in favor of the T in the event of his own survival was only a one-sided will. Correlation is not to be assumed, since T was neither related to M nor otherwise closely related to it.
In the absence of a “reciprocal” bond, F could freely dispose of otherwise due to death, so that L became her sole heir.
Of course, T can now demand her compulsory portion from L.

Something different would only apply if T could prove that M (because of the well-known lottering life of F or an intensive parent-child relationship between M and T) would have particularly important that the T beneficiaries in the event of his previous death ( especially with regard to his property).

Tip from the inheritance law expert: So that there is no interpretation or the application of sentences of doubt, the spouses should already expressly determine in the disposition upon death which of their dispositions should be "reciprocally related" and which should not.

The surviving spouse can only regain his testamentary freedom and can revoke his disposition in the joint will if he has been authorized to do so in the joint will or if he rejects what was assigned to him!

Note:

1. The binding effect does not concern lifetime dispositions, but only testamentary dispositions!
However, § 2287 BGB must be observed here, which also applies analogously to the final heirs of a joint will as soon as one of the certifying spouses has died.

2. The binding effect does not already follow from the fact that a joint will was drawn up. Only the provisions contained therein can binding be, if you reciprocal are (see below).

What is meant by mutual disposition?

Mutual - and thus binding - dispositions exist if it can be assumed that the disposition of one spouse would not have been made without the disposition of the other spouse, i.e. if each of the two dispositions was made with consideration for the other and according to the will of the joint testers who “stand or fall” with the other (cf. OLG Frankfurt / Main, ZErb 2013, 267, 269; BayObLG, FamRZ 05, 1931; OLG Hamm, FamRZ 04, 662).

If the interpretation does not already show that certain dispositions relate to one another, then according to the interpretation rule of Section 2270 (2) BGBThen to accept reciprocal references "in case of doubt",

"If the spouses consider each other or if one spouse is given a gift by the other and, in the event of the survivor, a disposition is made in favor of a person who is related to the other spouse or is otherwise close to him."

Such inheritance assignments are usually based on joint succession planning, which should deliberately be mutually dependent. The mutual appointments to single heirs take place in the trust that in the end a third party will receive a mutually intended donation.

Example: In their “Berlin Testament”, the couple E mutually stand up for sole heirs after the first deceased of them and determine that their son S should be the sole heir of the last deceased and daughter T “only” should receive a significant property legacy.
Here, the first-time deceased must be able to trust that the common plan that in the end the son should become the heir and the daughter “only” will be legatee will be implemented.
The dispositions of the spouses are therefore "mutually exclusive".

What is the effect of an amendment reservation in a Berlin will?

In order to prevent or mitigate the “bond trap” after the death of the first deceased spouse, the spouses can determine that the survivor should be authorized to unilaterally change the (usually mutually binding) final heir, legacy or special conditions. Such an amendment clause enables the surviving spouse to make effective deviating regulations in their own dispositions upon death, as long as these remain within the scope of the authorization or the power to amend. Its binding to the mutually binding order is therefore canceled or modified.

Such a clause is usually makes sensein order to be able to react to changed living conditions, for example if one child takes over the care and the other gets on the wrong track or even breaks off contact.

Example:
In their Berlin Testament, the couple initially mutually agreed to be sole heirs and then determined their children to be the final heirs of the survivor in equal parts.
An amendment clause then states: "The survivor can, however, change the line of succession under our descendants insofar as no third person other than our descendants gains a legal or economic advantage."
In such a case, the surviving spouse could otherwise determine the inheritance quotas among the descendants in their own death disposition. However, it should never, for example, appoint the new partner or a child-in-law to be the heir or consider a legacy. Such an order would be ineffective as it would not be covered by the amendment clause.

It is controversial whether an amendment clause that allows "the survivor to freely change the inheritance quotas within our descendants" or "to change the distribution of assets among our descendants" is also a disinheritance Change "to zero", made possible (on the other hand, probably OLG Düsseldorf, ZEV 2007, 275; but obviously OLG Frankfurt a.M., NJW-RR 2020, 1017).

What does a compulsory portion clause or a compulsory portion penalty clause do?

If, in a joint will (or inheritance contract), for example, the spouse is initially designated as the sole heir of the first deceased and the children “only” as the final heir of the last deceased, then the descendants after the first deceased are excluded from the legal succession and can thus claim their compulsory portion.

You can only legally prevent a descendant (or other person entitled to a compulsory portion) from asserting the compulsory portion if you manage to get one with the person entitled to compulsory portion while you are alive Compulsory portion waiver contract to be completed in front of a notary.

If you do not succeed in doing this, you can still add a so-called "will" in your will (or inheritance contract). Compulsory portion clause (also called compulsory portion clause), with which it is at least for descendants economically unattractive should be made to claim the compulsory portion.
In this way it can be determined (in simplified form) that a descendant who (against the will of the last deceased) demands his compulsory portion also after the last deceased disinherited should be.

Example of a compulsory portion clause:
"If one of our descendants should claim the compulsory portion after the death of the first deceased against the will of the last deceased, he and his descendants will be disinherited from us even after the last deceased."

This is the most common compulsory portion clause in its "primitive form". In addition, you can determine, among other things,

  • From what point in time a "claim" should be available (from the first request for information as the earliest possible point in time or only from receipt of the money as the latest point in time; if you want the survivor to be "left alone" as possible, then the earliest possible point in time is of course recommended !),
  • what should happen if all descendants demand the compulsory portion, as well as
  • further tightening up to the so-called Jastow’s clause, in which the descendants who do not claim the compulsory portion receive a monetary legacy in the amount of the value of their inheritance quota after the first deceased, but due postponement of the death of the longer living. As a result, the future compulsory portion can be reduced considerably after the last deceased!

Appointment of final heirs and mandatory portion clause

It is relatively easy if the spouses use final heirs for the event of ultimate death and then determine a mandatory portion clause:
In this case, the inheritance is then under the resolving condition the assertion of claims to a compulsory portion by the descendant. If there are no indications for a different interpretation, the h.M. assumes the will of the testator that the descendant and his entire tribe disinherited should be.

Compulsory portion clause without an express final heir

It is more difficult when spouses - as is often the case in private wills - "forget" an express final heir and determine, for example:

We support each other as sole heirs. The child who then demands the compulsory portion should be disinherited from us when the last one dies.

  • Here the interpretation of the will can show that with the compulsory portion clause a implied appointment of final heirs was intended (see for example OLG Munich, decision of 08.11.16, FamRZ 2017, 760; OLG Saarbrücken, NJW-RR 1994, 844) and the forfeiture of the compulsory portion clause is a condition subsequent (Section 158 (2) BGB).
  • However, the interpretation can also show that no final heir was intended, but rather that the mandatory portion clause was intended to "merely" result in an exclusion from the legal succession, i.e. a suspensive disinheritance (§ 158 Abs. 1 BGB) (OLG Stuttgart, decision of 09.08.17, NJW-RR 2017, 1353; see also OLG Düsseldorf, NJW-RR 2014, 837).

this has Consequences:
On the one hand, binding effect comes into consideration in the former case, in the latter case not, and on the other hand, in the first case, the condition can still be triggered after the death of the last deceased and thus the status of heir does not apply (BGH, ruling v.07/12/06, IV ZR 298/03), in the latter case, according to the Stuttgart Higher Regional Court, the claiming of the compulsory portion can only lead to the exclusion of the statutory right of inheritance until the death of the last deceased.

Recommendation from specialist lawyer for inheritance law Ingo Lahn:
Determine clearly what scope a mandatory portion clause should have and when it should be triggered!
If you do not use final heirs, but want to sanction the legal heirs of the last deceased with the compulsory portion clause, make this explicitly clear!
As always with the drafting of a will, it is best to let someone else help you Specialist lawyer for inheritance law to advise!

What is a remarriage clause?

The a There is no remarriage clause; they are available in different designs.
The most frequently used clause, however, is probably the one that determines that the estate will be transferred to a third party, usually the children, as soon as the surviving spouse remarries.

With such a clause, the testator wants to prevent a new spouse of the long-term resident from participating in his own estate through his statutory inheritance or compulsory portion and reducing it for the children.

But be careful: With such a remarriage clause, you put your spouse on the chain twice!
Because, on the one hand, you intervene massively in the freedom of marriage, which is protected by fundamental rights. On the other hand, you are restricting - presumably unconsciously - the surviving spouse's power of disposal over the estate.
Even if your spouse no longer dreams of getting married, it will only become clear in the logical second before his death whether he has not remarried (possibly still on the deathbed) and thus triggered the condition of the remarriage clause or not .

Hence, the spouse becomes according to the prevailing opinion dissolving conditional full inheritance and precedent preliminary inheritance with the result that the spouse is subject to the same restrictions on disposal as apply to a previous heir. According to H.M., however, he should be treated like a exempted preliminary inheritance (a.A. OLG Celle, Decision of 04.10.12, 6 W 180/12, according to which the restrictions on pre-inheritance only apply after remarriage, unless the interpretation of the will indicates otherwise).

See in detail about the consequences and Priority Restrictions my side to → Pre- and post-succession!

Since the Hohenzollern decision of the Federal Constitutional Court (ruling of March 22, 2004, 1 BvR 2248/01), there has been increasing discussion in the literature as to when a remarriage clause should be considered immoral can be viewed.
Here, however, there seems to be a consensus that a clause that provides for a dissolving grant in the event of remarriage is not immoral if it does not alone prevent remarriage (pure Jealousy clause), but the inheritance of your own family is to be secured and migration to the family of the second spouse is to be prevented.
Others demand that the remarried long-term person must at least retain his or her compulsory portion.

Be sure to leave remarriage clauses off one Specialist lawyer for inheritance law check.
When drafting a will, he can also recommend alternative clauses!

How can I revoke a joint or Berlin will?

A common will (Correctly: the related dispositions contained therein) can only go through during the lifetime of both spouses Notarized declaration of cancellation to the other spouse (§§ 2271 Abs. 1 S. 1, 2296 Abs. 2 BGB).

After the death of one of the spouses, the dispositions contained in a joint will can no longer be revoked!
The only thing that helps here is to reject the inheritance after the first deceased in order to regain his testamentary freedom.

Does a Berlin will become ineffective in the event of a divorce?

Yes.
A joint will is made with Legal force of the divorce decision according to its entire content ineffective. The same applies as soon as a cancellation decision becomes final.

If the testator dies before the divorce becomes final, the legal consequence of ineffectiveness even occurs earlier one, namely

  • if the requirements for the divorce were met (failure of the marriage, year of separation)
  • from the time at which the testator received the Filed for divorce (the time at which the application is served by the family court is decisive) or
  • the testator submits an application for divorce from the other spouse agreed Has.

The same applies if the testator was entitled to apply for annulment of the marriage at the time of his death and had made the application (§ 1313 ff. BGB).

Exception: The dispositions remain, however so far effective than it can be assumed that they would also be met in this case (§§ 2268 Abs. 2, 2077 BGB). The surviving (former) spouse who invokes the continued validity is burdened with determination or evidence for the will to continue to apply.

The same applies to the inheritance contract, even if dispositions have been made in favor of third parties (2279 para. 2 BGB).

If a joint will or a contract of inheritance has become ineffective under the aforementioned conditions, nothing changes here if the spouses agree that the Suspend divorce proceedingsin order to carry out mediation (OLG Oldenburg, decision of September 26, 2018, 3 W 71/18).

Also one later remarriage of the once divorced spouses does not generally lead to the fact that the will that has become ineffective is viewed as effective again. However, within the framework of a supplementary interpretation, the examination of the hypothetical will to continue to apply may show that the spouses would have made their last wills even if they had foreseen their divorce and subsequent remarriage as possible (generally affirmed: OLG Düsseldorf, decision v 10.03.17, I-3 Wx 186/16).

Can a third party contest a joint or Berlin will?

In the case of a joint will, if one of the spouses has already passed away, a third party can, on the basis of §§ 2078, 2079 BGB, die Do not contest the last deceased's disposal any moreif the surviving spouse's right to challenge himself for the same reason has expired at the time of the inheritance.
Because according to constant BGH jurisprudence, the inheritance contract provision of § 2285 BGB is applicable (analogously) to the mutual dispositions of the last deceased spouse in the joint will.

According to a judgment of BGH (Judgment of May 25, 2016, IV ZR 205/15) comes a analog application this regulation, however Not in consideration when contesting a third party Disposal of the first deceased spouse in the joint will, since there is no comparable interest situation, which is necessary for an analogy in addition to an unintended loophole in the regulation. Because the first deceased never had a right of avoidance, but only a right of revocation tied to the notarial form.

Conclusion: The contestation of reciprocal dispositions of the first deceased spouse by a third party is not restricted in the corresponding application of § 2285 BGB.