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OLG Köln: Heir must be defined with sufficient clarity in will

May 2017

Testators need to define their heirs with sufficient clarity in wills, because the will might otherwise be invalid. That was the verdict of the Oberlandesgericht (OLG) Köln [Higher Regional Court of Cologne] in its ruling of November 14, 2016 (Az.: 2 Wx 536/16).

By drafting a will, the testator is able to circumvent the rules of intestate succession and personally appoint his heir. While it is not absolutely necessary for the heir to be designated by name, it must at least be possible to reliably identify him. Accordingly, the wording of the will ought to be unambiguous. As demonstrated by the ruling of the Oberlandesgericht Köln, the will might otherwise be invalid.

In the instant case, a married couple had drafted a joint will. This stated that the person who accompanied and cared for the last of the spouses to pass away would become the sole heir (“derjenige, der den zuletzt verstorbenen Ehegatten begleitet und gepflegt hat, der Alleinerbe sein soll”). The husband was the first to pass away, and following his death it was his brother who took care of the widowed wife. He organized, among other things, his brother’s burial, dealt with official correspondence as well as the tax declaration. Moreover, he provided his sister-in-law with psychological support and managed her medical care. He therefore applied for the certificate of inheritance. However, the brother of the since deceased wife resisted this, claiming that the will was not sufficiently precise and that he had cared for his sister and visited her regularly. He went on to say that the brother-in-law had not performed any care or nursing services.

The OLG Köln held that the testatrix’s brother-in-law had not become the heir, ruling that the will was not sufficiently precise and unambiguous and did not clearly designate an heir. The Court stated that a testator needs to have made up his mind regarding the content of all of the key components of his final will. This includes, in particular, the designation of the beneficiary. The Court went on to say that while it is not necessary for this person to be designated by name, it must be possible to reliably identify the beneficiary based on the content of the testamentary disposition having regard, as the case may be, to circumstances beyond the deed in question. According to the OLG, said person needs to be defined in such a way that any form of arbitrariness on the part of third parties is excluded. It noted that this was not the case here, concluding that the wording gave no indication as to the nature or scale of any care.

Lawyers who are experienced in the field of succession law can advise on all matters pertaining to wills or contracts of inheritance.

https://www.grprainer.com/en/legal-advice/private-clients/law-of-succession/last-will-and-testament.html

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