‘One-sided’ revocation of a joint will is not possible
Joint wills constitute a frequently used form of estate planning between spouses. After the death of a spouse, however, a question that routinely arises is the extent to which the surviving spouse still has the right to make changes - especially in the case of disinheritance. Recently, the Higher Regional Court (Oberlandesgericht, OLG) of Zweibrücken had to address the issue of whether or not a disinheritance clause in a joint will could be effectively revoked via subsequent one-sided wills.
The decision of the OLG Zweibrücken, in its ruling of 18.2.2025 (case reference: 8 W 18/24) related to a testator who had died in 2022; she had made a joint will, in 2010, together with her husband who then predeceased her. In this will they had both mutually appointed each other as the respective sole and unrestricted heir of the one who dies first. A cousin or alternatively her son was appointed as the final heir (Schlusserbin). Their own son had predeceased them and his children, thus the testators’ grandchildren, were not supposed to inherit anything nor receive a compulsory portion either. However, in another, handwritten will the spouses had revoked their previous will and had simply appointed each other as sole heirs. After the death of her husband the testator made one-side last wills and testaments in conjunction with a revocation of previous last wills and testaments.
After the testator’s death, the probate court (Nachlassgericht) initially seized of this matter was of the view that the clause that disinherited the grandchildren had been invalidated by the subsequent revocations that had been made, and this was why the grandchildren had become co-heirs. The OLG Zweibrücken disagreed with that view and repealed the decision of the probate court. The disinheritance of the grandchildren was still valid because this had been part of the joint will. The court stressed the significance of the binding effect of joint wills (Section 2270 of the German Civil Code). Even if individual provisions are formally revoked it is always necessary to check if there is an interrelated provision that can only be modified under strict conditions.
