Will - Interpretation of the will in case of ambiguities
If a will has been drawn up, ambiguities can often arise with regard to its contents. In particular, if the will was drawn up in private without expert assistance, the testator's instructions may be jeopardized due to their ambiguity.
When is an interpretation of the will necessary?
First of all, an interpretation is appropriate when 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.
Example: The testator named his two children A and B as heirs in his will. Shortly before his death, he became the father of child C again.
What are the requirements for the interpretation of the will?
In principle, it is necessary for the interpretation of the will that the will was drawn up in a formally valid manner.
In addition, an interpretation can only be considered if there are ambiguities in the testamentary disposition.
Furthermore, in order to meet the formal requirement, the will resulting from the interpretation must at least be implied in the disposition of property upon death (implication theory of the Federal Court of Justice).
How is a will interpreted?
If unclear formulations have been used in the will, these must be interpreted. The aim of interpretation is to determine the testator's actual will.
First, the wording of the will is interpreted. In doing so, it must be checked whether the content of the testator's will corresponds to that of the will. In practice, erroneous or incorrect terms often lead to problems in the interpretation of the wording.
In addition, circumstances outside the will are also taken into account in the interpretation. In particular, the circumstances in which the will was made and the testator's personal relationships with the beneficiaries are taken into account. However, it is important to note that outside 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 made a mistake in forming his will, the corresponding will of the testator can be established by a supplementary interpretation.
In interpreting the will, it is not a question of how a third party would have understood the contents of the will, but of how the testator would actually have intended it.
If the testator's intention cannot be ascertained by a simple or supplementary interpretation, recourse must be had to statutory rules of interpretation.
Important rules of interpretation include:
- sections 2068, 2069 of the German Civil Code (BGB) - provision for the inheritance of children.
If the testator has made provision for his children without further specification and if a child has died before the will was drawn up leaving descendants, it must be assumed in case of doubt that the descendants have been provided for as they would take the place of the child in the case of intestate succession.
- section 2077 of the Civil Code - provision for wills after divorce
Pursuant to Section 2077 (1) sentence 1 of the German Civil Code, a testamentary disposition by which the testator has made provision for his spouse is invalid if the marriage was dissolved before the testator's death.
- 2087 BGB - Distinction between inheritance and legacy
Pursuant to Section 2087 (1) of the Civil Code, a disposition is deemed to be an inheritance if the testator grants his property or a fraction of his property to the beneficiary, even if the beneficiary is not designated as the heir. A legacy is to be assumed in accordance with subsection 2 if only individual items are bequeathed to the beneficiary.