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Berliner Testament – Final heir able to reclaim gifts

Published: 10 Jan 2018

A joint spousal will has a strong binding effect and can potentially affect gifts made by the surviving spouse, as demonstrated by a ruling of the Oberlandesgericht (OLG) Hamm [Higher Regional Court of Hamm].

A type of will known as a “Berliner Testament” (“Berlin will” in English) is popular among married couples. Spouses can use this to mutually appoint each other as sole heirs and typically their children as final heirs. The snag when it comes to a joint spousal will is its strong binding effect. We at the commercial law firm GRP Rainer Rechtsanwälte note that the surviving partner is bound by the joint provisions, even after the death of the first spouse, and can no longer unilaterally alter these if no provisions allowing for this were agreed.

This strong binding effect can also affect gifts made by the surviving spouse. It may be possible for the final heir as defined in the joint spousal will to reclaim these gifts, as shown by a judgment of the Oberlandesgericht Hamm from September 12, 2017 (Az.: 10 U 75/16).

In the instant case, a married couple had appointed their son as final heir in their joint spousal will. Several years after the death of his wife, the husband moved in together with another woman. At the behest of his father, the son agreed with said woman to a lifelong right of residence in relation to the father’s house on condition that she care for the father and not avail herself of any claims to own the house. Additionally, the father also assigned the woman various items of property amounting to a total value in the region of 250,000 euros. Following the death of his father, the son in his capacity as final heir sued for the surrender of these assets and justified this by contending that the donations as part of his inheritance were detrimental gifts which needed to be reversed.

The OLG granted the claim, ruling that the testator in gifting the assets in question to the woman had compromised his son’s expected inheritance. The Court held, however, that the father had been obliged to be mindful of his son’s appointment as final heir in the will, and that the former was bound by the relevant joint provisions. It went on to say that the testator had no reasonable interest in the gifts made during his lifetime, particularly as the woman had enjoyed free board and lodging living with him anyway.

It is always possible for disputes to arise, even if there is a will. Lawyers who are experienced in the field of succession law can advise on matters pertaining to wills and contracts of inheritance.


Michael Rainer

Firm: GRP Rainer LLP
Country: Germany

Practice Area: Commercial

  • Augustinerstraße 10
    50667 Cologne

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