The Berlin will is still very popular in Germany. However, it must be noted that it is not uncommon for them to be drawn up without the advice of a specialist inheritance lawyer, which is why mistakes are often made in handwritten wills, so that the testator's wishes are not realised. For this reason, we would like to outline the most common mistakes made when drawing up a Berlin will.
What is a Berlin will?
A Berlin will is a spouse's will in which the joint children of the spouses do not become heirs of the first to die. The assets of the first to die are initially transferred in full to the other spouse. The assets bequeathed to the other spouse are not separated. Elsewhere we have already discussed a Contribution to the Berlin will created. We would therefore only like to discuss specific errors here.
1st mistake: Who can draw up a Berlin will?
According to Section 2265 BGB, a joint will can only be drawn up by spouses. This provision also applies to registered civil partners in accordance with Section 10 (4) LPartG. Other persons cannot draw up a joint will. However, if they do, it becomes problematic. You could try to reinterpret the joint will into two individual wills. However, in most cases, one of these wills will be invalid due to a lack of complete handwriting. The other will may be formally valid. However, the testator's actual will must then be determined. And it is highly questionable whether he would really have wanted to make his dispositions in this way if he had known that the dispositions of the other party were invalid. This is where the uncertainties of a purely private drafting of a joint will become apparent.
2nd mistake: The lack of form
The joint will has a simplified form, Section 2267 BGB. This means that only one of the testators must fulfil the formal requirements of Section 2247 BGB. He or she must write the will in full in his or her own hand and should also date it. The other testator only has to co-sign the will and should add the date of his or her signature. This is also often done incorrectly.
3rd error: The binding effect
The third error in the Berlin will lies in the failure to understand the binding effect. The Berlin will is characterised in its effect precisely by the fact that the surviving spouse is bound by the so-called reciprocal dispositions after the death of the first deceased. Reciprocal dispositions are dispositions that one party has only made because the other party has made another disposition - i.e. when the two dispositions are to stand and fall with each other. This often causes problems, especially in the case of private wills, as it is not possible to determine exactly which dispositions are to be reciprocal. Advice from a specialist lawyer for inheritance law is important here.
Example: Spouses M and F appoint each other as sole heirs. They both stipulate that after the death of the second deceased, the assets are to go to their daughter.
The dispositions by which the two spouses appoint each other as sole heirs are reciprocal („I appoint you as my heir because you also appoint me as your heir“). However, the appointment of the joint daughter as heir by the last deceased spouse is also reciprocal to the appointment of the other spouse as heir by the first deceased spouse („I appoint you as my heir because if you die after me, you will appoint our joint daughter as your heir“).
However, this means that the surviving spouse is bound after the death of the first deceased and subsequent deviating dispositions may not become effective, Section 2271 II 1 BGB. If circumstances arise after the death on the basis of which the surviving spouse wishes to make new dispositions, he or she cannot do so with the desired consequence in the case of dispositions relating to alternate dispositions. He is bound.
4th mistake: The right to a compulsory portion
The fourth error relates to the right to a compulsory portion. If the spouses appoint each other as sole heirs, this disinherits the children - regardless of whether they are to become heirs after the death of the second deceased. This triggers the children's claim to a compulsory portion, Section 2303 BGB. The children may therefore assert their claim to a compulsory portion against the surviving parent. The latter may have to liquidate assets in order to fulfil the claim. This scenario can possibly be avoided by a compulsory portion penalty clause. This stipulates that the child who claims the compulsory portion will only receive the compulsory portion even after the death of the second deceased. However, such a clause is only one way of avoiding the assertion of a claim to the compulsory portion. Dr Gottschalk will be happy to advise you on how to solve this problem.
5th mistake: Tax law
The fifth mistake is the failure to take account of tax structuring options. With the „normal“ Berlin will (spouse sole heir, children final heirs), the children's tax-free allowances are not utilised. Despite the desire to maximise the spouse's tax benefits, it may therefore make sense to make gifts to the children as early as the first inheritance. This can take the form of bequests, for example. The possibility of leaving a „super legacy“ has been discussed for some time. This discussion had initially levelled off, but has now been revived in view of a Decision of the OLG Hamm from 16/08/2018 fully inflamed again. Your specialist lawyer for inheritance law in Düsseldorf and Krefeld, Dr Michael Gottschalk, is at your disposal for this and all other questions.