The possibility of drawing up inheritance contracts and joint wills in Germany is not a matter of course. Other countries do not offer their citizens this option. The reasons for this lie largely in the preservation of the testator's free testamentary capacity. To the Binding effects of inheritance contracts and joint wills we have already written an article on each. The question of how these German injunctions are dealt with abroad and whether they are effective is therefore all the more interesting.
Inheritance contracts
Succession contracts are dealt with in Article 25 of the Regulation. Article 3(1)(b) defines a contract of succession as an agreement „on the basis of mutual wills which, with or without consideration, creates, modifies or withdraws rights to the future estate or future estates of one or more persons involved in this agreement.“
Pursuant to Article 25(1) of the Regulation, the admissibility and substantive validity are subject to the law of succession that would be applicable under this Regulation if the testator had died at the time the contract of succession was concluded. However, if several persons make testamentary dispositions in the contract of succession, the contract of succession must be admissible under each of the home laws of the persons involved, paragraph 2.
As only a few states - apart from Germany - consider an inheritance contract to be permissible, the persons involved can also make an isolated choice of law for the inheritance contract, paragraph 3. If a person is German, this provides a way for the inheritance contract to become effective. It should be noted in particular that an inheritance contract with a choice of law drawn up before the application of the EU Succession Regulation became effective retrospectively when the EU Succession Regulation came into force. This has been confirmed by the highest court in a Decision of the BGH (decision of 10 July 2019 - IV ZB 22/18) confirmed.
Art. 25 para. 3 of the EU Succession Regulation makes it possible to choose the law according to which the admissibility, substantive validity and binding effect of an inheritance contract is then assessed. Art. 25 para. 3 of the EU Succession Regulation refers to Art. 22 of the EU Succession Regulation, according to which a person may choose the law of the state to which he or she belongs at the time of the choice of law or death.
Joint wills
The treatment of joint wills is controversial. In some cases, a joint will is regarded as a contract of succession within the meaning of the EU Succession Regulation. On the other hand, it is argued that the validity of a joint will is governed by the requirements of a simple will in accordance with Article 24 of the EU Succession Regulation. This dispute would have an impact on the choice of law.
If several people wish to make testamentary dispositions by contract, each person could - according to the latter view - only choose their own home law for their disposition. A binding effect cannot be achieved if a home law prohibits this or considers joint wills to be inadmissible per se. A choice of law for the entire will is not permitted. This would only be possible via the above-mentioned regulation on the contract of succession in accordance with Article 25(3) of the EU Succession Regulation.
Conclusion for testators
The dispute has not yet been decided by a court. This dispute becomes relevant in practice for German testators if the spouses are of different nationalities and one of them is not a German citizen. In this case, they can only be advised to conclude an inheritance contract and choose German law for its admissibility and validity. This is associated with greater legal certainty with regard to its treatment.