In practice, it often happens that testators leave several wills, especially if they are unsure about how to organise their estate. This can be particularly problematic if the content of the wills is contradictory.
In principle, testators are free to draw up several wills with the same content and keep these documents in different places. Particularly suspicious testators often want to ensure that at least one of the wills is found after their death.
There is no problem if the different wills merely complement each other and do not conflict with each other. An example would be if a testator names his heirs in a first will and specifies a legacy in favour of a particular person in a second will. Both documents are valid as long as they fulfil the required formalities.
Difficulties arise when, after the death of the testator, two or more wills appear that contradict each other. In principle, the creation of a will cancels an earlier will to the extent that the later will contradicts the earlier one. In other words, the later will generally prevails. Nevertheless, in practice it is not always easy to recognise whether there is a contradiction at all. The earlier will is not completely cancelled by a later will, but only to the extent that there is a contradiction at all. An example of a clear revocation would be if the testator appointed his son as sole heir in a will from 1996 and ten years later disinherited his son in a will from 2006 and appointed his brother as sole heir instead. In this case, the 1996 will is deemed to have been revoked in accordance with Section 2258 (1) BGB.
To ensure legal clarity, it is strongly recommended to clarify in a second, later will how the earlier dispositions are to be dealt with. If the intention is to completely rearrange the succession, it makes sense to place the following clarifying sentence in front of the later will:
„I hereby revoke in their entirety all dispositions issued by me to date.“
Provided that the testator is not restricted by inheritance law obligations in a joint will or inheritance contract, such a clarifying sentence enables the succession and other inheritance law provisions to be reorganised from scratch.
If none of the wills contain such a clarifying sentence, the statutory provision of § 2258 BGB applies.
It is therefore crucial for the cancellation of an earlier will that the content of the later will contradicts the earlier will. It does not matter whether the testator was aware that he was cancelling the earlier will.
Which will applies in the absence of a date?
The dating of a will is not a formal requirement that renders the entire will invalid if it is missing. However, the dating is important for the probative value, especially if several wills exist. It can therefore be problematic if the testator has drawn up two undated wills.
If the wills are not dated, it must be determined which is the earlier and which is the later will based on the circumstances of the individual case.
What happens if the date is the same?
If it is not possible to clearly determine which of the two wills is the earlier and which is the later, it is assumed that they were made at the same time. In such cases, contradictory dispositions become ineffective as a whole and neither will takes precedence over the other. This means that paragraph 1 of Section 2258 BGB does not apply in this case.
If one of the wills of the same date is a joint will with reciprocal dispositions, the joint will remains valid. If the wills contain joint dispositions, these may continue to be valid, even if they relate to the lowest common denominator. An example of this is persons who are named co-heirs in both wills, but with different inheritance quotas. In such cases, the persons named in the common denominator can inherit at least at the lower inheritance quota and the statutory succession does not apply to this part.