OLG Frankfurt: Continuity of a joint will despite divorce
It is possible for a joint will to remain valid even after a divorce under certain circumstances. That was the decision of the OLG Frankfurt (Higher Regional Court of Frankfurt) (Az.: 20 W 520/11).
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London – www.grprainer.com/en conclude: Spouses can mutually appoint each other as sole heirs as well as designate final heirs in a joint will or so-called Berliner Testament (Berlin will). A will generally loses its validity after a divorce. However, it follows from a ruling of the OLG Frankfurt am Main that joint instructions in a will can potentially retain their validity.
In the case in question, a married couple had a notarised joint will drawn up in 1978 in which they mutually appointed each other as sole heirs. The childless marriage was brought to an end in 2006. In the course of the divorce, various arrangements were made. Among other things, the couple specified that the stipulated designation of heirs would remain valid even in the event of a final decree of divorce. Following the death of the husband, his ex-wife applied for a certificate of inheritance. A female friend of the deceased husband lodged a complaint against this, claiming that the testator had prepared another will in 2010 in which he appointed her as his sole heir.
The OLG ruled in favour of the divorced ex-wife. She became the sole heir because the notarised joint will from 1978, in which the spouses mutually appointed each other as sole heirs, remained valid even after the divorce. The Court went on to say that the testator was not able to unilaterally cancel the joint instructions with a second will. It stated that while a joint will becomes invalid after a divorce, the divorce settlement indicated that the will should remain valid and continue to have binding effect.
There are a lot of consequences arising from testamentary dispositions that need to be taken into account when drafting a will, particularly in cases involving a Berliner Testament. Lawyers who are experienced in the field of succession law can help with issues pertaining to the estate, will or contract of inheritance.