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OLG Köln on incorporating the execution of a will into the certificate of inheritance

November 2017

Heirs might be able to do as they wish with an estate even if an execution of a will has been ordered if its function is supervisory in nature. That was the verdict of the Oberlandesgericht (OLG) Köln [Higher Regional Court of Cologne].

We at the commercial law firm GRP Rainer Rechtsanwälte note that if a testator orders execution of a will, this may limit the heirs’ control in relation to the estate. The execution of the will is then recorded in the certificate of inheritance. However, this step does not need to take place if the testator intended that the execution of the will be merely supervisory in nature and the executor’s brief is not supposed to involve administering the estate. That was the verdict of the Oberlandesgericht Köln in its ruling April 3, 2017 (Az.: 2 Wx 72/17).

In the instant case, the 85-year-old testator had five children. He appointed them in his will as preliminary heirs and his grandchildren as revisionary heirs. He also ordered execution of the will. In doing so, he mandated that the executor’s role was to supervise his testamentary disposition and not the ongoing management of the estate. Moreover, he ordered an additional executorship for his disabled daughter; her share in the inheritance was to be administered by way of a permanent executorship.

The point of contention was whether the supervisory execution of the will needed to be incorporated into the certificate of inheritance. The OLG Köln took the view that there was no cause for doing so. It interpreted the testator’s will to mean that he, with the exception of the disabled daughter, did not wish to limit the four other children’s right of disposal in relation to their share in the inheritance. The executor was only to supervise the implementation of his testamentary dispositions.

Accordingly, because these four children were able to do as they pleased with their portion of the estate, the OLG Köln held that a memorandum stating that the execution of the will had been ordered need not be included in the certificate of inheritance. The Court went on to say that this would only be necessary if the execution of the will was supposed to limit the heirs’ control.

The testator should always take care to ensure that their wishes have been stated as clearly as possible so that their testamentary dispositions are actually implemented in accordance with their wishes. Lawyers who are versed in the field of succession can advise on all matters pertaining to estates, wills and contracts of inheritance.

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