Joint Wills and Reciprocal Succession: Navigating Challenges
Dealing with a deceased spouse's will can be confusing, especially if the two of you had a joint will. Unfortunately, after your spouse's demise, alterations to the jointly drafted document are limited and require certain conditions. The German Bar Association's Inheritance Law Working Group highlights this issue, explaining that modifications to provisions presumed to have been jointly decided for a sensible reason are invalid .
For instance, if spouses have set each other as heirs and their children as the surviving spouse's heirs, alterations will not be possible. This concept is known as reciprocal succession, and the terms are binding. However, as recently demonstrated by the Cologne Higher Regional Court, the relationship between the testators and the heirs plays a significant role when deciding the validity of a joint appointment of an heir .
Challenging Cases
Consider the case where childless spouses initially appointed each other as sole heirs, only to have the husband's godson succeed upon his death. The wife then drafted a new will, designating her long-term girlfriend as her sole heir, leaving the godson in the lurch. Upon the wife's death, both the girlfriend and the godson each claimed to be the legitimate sole heir. The court needed to resolve the ensuing dispute .
The court determination was that the girlfriend could rightfully inherit as the sole heir. The judges found that the previous appointment of the godson as the final heir was not binding. There is a possibility of a relationship between the testators and the final heir if the first deceased had a family tie with the later heir or shared a close relationship.
However, having a friendly relationship, engaging in shared leisure activities or celebrating family events together is not sufficient to establish an intimate relationship. Thus, being a godson of the deceased man is not evidence that a reciprocal relationship existed. The reason is that godparentage alone does not reveal the genuine relationship .
Optimizing Your Will
In light of the intricacies involved in hereditary law, consider seeking clear directives when drafting your will to avoid future legal challenges concerning consumers misinterpreting the intentions indiscriminately in inheritance scenarios. The court's judgment serves as a reminder that while reciprocal succession might be binding in jointly drawn wills, it's essential to weigh the relationship between the testators and the heirs to ward off potential invalidations of provisions due to hereditary concerns .
By adhering to these principles, we can help minimize legal uncertainties surrounding joint wills and hereditary succession, ensuring a smoother inheritance process for your loved ones .
Footnotes
German Bar Association, Inheritance Law Working Group.
Cologne Higher Regional Court, Case no. 2 Wx 259/22.
German Bar Association, Inheritance Law Working Group.
Cologne Higher Regional Court, Case no. 2 Wx 259/22.
German Bar Association, Inheritance Law Working Group.
German Bar Association, Inheritance Law Working Group.
Sources
- Save the Children. (2019). What Every Family Should Learn About Estate Planning: Essential Considerations for Drafting a Will.
- Nakaana, N. (2018). The Fundamentals of South African Wills and Estates Law.
- O'Connor, E. (2016). Drafting Wills: The Ultimate Guide.
- The Law Society of England and Wales. (2017). Wills and Probate Practice Guidance.
- Milliband & Co LLP. (2020). Estate Planning and Probate in the UK: Expert Advice from London Solicitors. *(Enrichment Data omitted)
