Will - interpretation of the will in the event of ambiguities
If a will has been drawn up, there can often be ambiguities with regard to its content. In particular, if the will was drawn up privately without expert help, the testator's instructions may be jeopardised due to their lack of clarity.
When is an interpretation of the will necessary?
An interpretation is necessary if the testator has used unclear wording. This is the case, for example, if the terms used are ambiguous or unclear.
In addition, contradictory instructions must be interpreted. An interpretation may also be necessary if there are gaps in the will. This is the case if the testator has not considered certain situations.
What are the requirements for the interpretation of a will?
In principle, it is necessary for the interpretation of the will that the will was drawn up in a formally effective manner.
Furthermore, an interpretation can only be considered if there are ambiguities in the disposition of property upon death.
Furthermore, in order to fulfil the formal requirement, the intention resulting from the interpretation must at least be indicated in the disposition of property upon death (the Federal Court of Justice's theory of intimation).
How is a will interpreted?
If the wording in the will is unclear, it must be interpreted. The aim of interpretation is to determine the actual will of the testator.
Firstly, the wording of the will is interpreted. This involves checking whether the testator's intention matches the content of the testator's will. In practice, erroneous or incorrect terms often lead to problems when interpreting the wording.
In addition, circumstances outside of the will are also taken into account in the interpretation. In particular, the circumstances in which the will was drawn up and the testator's personal relationships with the beneficiaries are taken into account. However, it is important to note that external circumstances can only be taken into account if they were also indicated in the will
Even if the wording of the will indicates otherwise, the actual will of the testator always prevails. Even if the testator has made a mistake in the formation of his will, the corresponding will of the testator can be determined by means of a supplementary interpretation.
When interpreting a will, it is not important how a third party would understand the content of the will, but how the testator would actually have wanted it.
If the will of the testator cannot be determined by a simple or supplementary interpretation, statutory rules of interpretation must be applied.
Important rules of interpretation include
- §§ Sections 2068, 2069 BGB - Regulation for the appointment of children as heirs
If the testator has provided for his or her children without further specification and if a child has died before the will is drawn up leaving descendants, it is to be assumed in case of doubt that the descendants are provided for as they would take the place of the child in the statutory succession.
- § Section 2077 BGB - Regulation for wills after divorce
Pursuant to Section 2077 (1) sentence 1 BGB, a testamentary disposition by which the testator has provided for his or her spouse is invalid if the marriage was dissolved before the testator's death.
- 2087 BGB - Differentiation between inheritance and legacy
Pursuant to Section 2087 (1) of the German Civil Code (BGB), the disposition is to be regarded as the appointment of an heir if the testator grants his or her assets or a fraction of his or her assets to the beneficiary, even if the beneficiary is not designated as an heir. A legacy is to be assumed in accordance with paragraph 2 if only individual items are given to the beneficiary.