OLG Rostock, decision of 25 August 2020 - 3 W 94/19

Central standards: BGB §§ 2269 ff.

(Limitation of the reciprocal nature of a will to the lifetime of the testators)

Guiding principle:

Since the spouses are free to determine whether and to what extent their testamentary dispositions should be subject to change, they are also authorised to extend, restrict or exclude the revocability of dispositions subject to change beyond the scope provided for by law and even to grant the survivor a free right of revocation.

For the reasons:

11 The appeal, which is admissible pursuant to Sections 58 and 63 FamFG, is unsuccessful on the merits.

1.
12 The notarised will of Mr and Mrs B. dated 3 November 2009 is a joint spouse's will within the meaning of Section 2269 BGB, by which the spouses initially appointed each other as heirs and appointed the parties 1) to 5) as final heirs after the death of the last to die.
13 Pursuant to Section 2271 (2) BGB, the right of a spouse to revoke a disposition made in a joint last will and testament expires upon the death of the other spouse. The surviving spouse is thus bound by a disposition relating to alternate dispositions and is prevented from making any other last will and testament that would be detrimental (see OLG Hamm, decision of 7 November 1994 - 15 W 288/94 -, cited in juris, para. 33).
14 Pursuant to Section 2270 para. 1 BGB, those dispositions made in a joint spouse's will that can be assumed that the disposition of one spouse would not have been made without the disposition of the other, i.e. each spouse has made their dispositions precisely because the other spouse has also made a certain disposition and each disposition should stand or fall with the other according to the will of the joint testators (cf. on this, OLG Brandenburg, judgement of 12 May 1999 - 10 U 35/97 -, cited in juris, para. 59 with further references; OLG Hamm, loc. cit.). In this context, the reciprocal reference must be examined separately for each individual disposition of the will, whereby the will of the jointly testating spouses must be determined by interpretation (see OLG Brandenburg, loc. cit.; OLG Hamm, loc. cit., para. 34). The will at the time the joint will was drawn up is decisive.
15 Whether there is a reciprocal reference in the present case - which the Senate assumes with the mutual appointment of the spouses as respective sole heirs and the designation of the parties 1) to 5) as respective final heirs - can ultimately be left open, as the Local Court - Probate Court - came to the conclusion without objection in this context that the reciprocal reference agreed in the joint will should ultimately be limited to the lifetimes of both spouses.
16 Since the spouses are free to determine whether and to what extent their testamentary dispositions should be subject to change, they must also be considered authorised to extend, restrict or exclude the revocability of dispositions subject to change beyond the scope provided for by law and even to grant the survivor a free right of revocation (see Palandt/Weidlich, BGB, 79th edition, Section 2271, para. 20; OLG Hamm, loc. cit. N.; OLG Bremen, decision of 30 August 2017 - 5 W 27/16 -, cited in juris, para. 11; see OLG Karlsruhe, decision of 18 August 2011 - 11 Wx 46/10 -, cited in juris, para. 35).
17 That this was done in the present case is clear from the necessary interpretation of the amendment clause in § 5 of the spouses' joint will.
18 The aim of interpreting a will is to ascertain the testator's true intention. The wording must be used as a starting point. However, this is not binding. Rather, the meaning of the words and the expressions used by the testator must be scrutinised in order to determine what he intended to say with his words and whether he expressed exactly what he wanted to express with them (see BGH, judgment of 7 October 1992 - IV ZR 160/91 -, cited in juris, para. 10). In this respect, only his subjective understanding of the terms used by him is decisive (cf. Palandt/Weidlich, loc. cit., § 2084, para. 1). In order to determine the content of the testamentary dispositions, the entire content of the testamentary deed, including all ancillary circumstances, including those outside the will, must be taken into account and recognised (see BGH, loc. cit. para. 10 with further references). Such circumstances may lie before or after the drawing up of the will. This includes the entire behaviour of the testator, his statements and actions (see Palandt/Weidlich, loc. cit., Section 2084, para. 2, with further references), however, in view of the formal requirements of Section 2247 BGB, it must be possible to find indications - even if only hints - of a corresponding will of the testator in the testamentary disposition (see in this regard: OLG Frankfurt, decision of 18 May 2020 - 21 W 165/19 -, cited in juris, para. 27).
19 In accordance with the above principles, there is a power of amendment of the last survivor, which also covered the (previous) appointment of the two children of the testator's predeceased husband (the parties re 4) and 5)) in favour of their own children (the parties re 1) to 3)). The authorisation to also change the appointment of the final heirs follows from the fact that the final heir only inherits the survivor and the latter only disposes of his own estate through the (previous) change (see Palandt/Weidlich, loc. cit., § 2271, para. 20; Reinmann/Mayer/Sammet, Testament und Erbvertrag, 7th edition, § 2271, para. 79; BayObLGZ 1987, 23 (28)).
20 In the opinion of the Senate, the wording of the partial clause is unambiguous. The joint will states in this respect:
„... He is also entitled to dispose of the estate of both parties in another way in his will
21 Accordingly, the issue in the present case is not only that the survivor should be entitled to freely dispose of both parties' assets during his or her lifetime after the spouse's predecease - this was previously regulated separately in the clause - but that the survivor should be authorised in the will to make (completely) different dispositions of both parties' estates. This would not have been possible if the parties 1) to 5) had continued to be the final heirs. It should be noted that this was not a so-called joint lay will, but that it was drawn up by the notary F., so that it can already be assumed that this clause was included with knowledge of its significance. However, the Local Court correctly requested a supplementary written statement from the notary who notarised the joint will at the time. In her written statement dated 25 April 2019, the notary explained that the spouses did not wish to be bound with regard to their dispositions after the first death and that they would have wanted to have a free hand even after the death of the first deceased. The spouses' presumed intention was that the reciprocal nature of the dispositions should also cease to apply as part of the exemption. The survivor was to have unrestricted disposal over both the estate of the first to die and his or her own assets.
22 The party re 4) has also not presented any circumstances that could contradict this. She did claim that it was not the will of her predeceased father that the testatrix should have been authorised to deviate from the disposition made in the joint will regarding the appointment of the parties 1) to 5) as the survivor's final heirs. However, no specific explanation was provided as to how she arrived at this conclusion.
23 By labelling the previous joint will of the spouses as invalid in her handwritten will, the testator revoked it. The use of the term „revocation“ was not necessary in this respect. The revocation can already result from a later appointment of heirs with the omission of initially appointed final heirs. The revocation did not require the notarised form of § 2271 para. 1 BGB. The testator's handwritten will was sufficient in this respect (cf: Reimann/Mayer/Sammet, Testament und Erbvertrag, 7th edition, Section 2271, para. 84).
24 As a result of the revocation of the joint will by the testatrix in her handwritten will, the reciprocal dispositions of the joint will have thus lost their effectiveness. Therefore, only the testator's dispositions in her handwritten will dated 19 February 2014 are relevant in this respect. The Senate has no reservations about the validity of that will.