The ‘Berlin Will’ - Financial support for the building of a house as a trigger for the compulsory portion penalty clause?
In a so-called Berlin Will (Berliner Testament) spouses mutually appoint each other as sole heirs. If a compulsory portion penalty clause is agreed and one child already asserts their compulsory portion claim in the first succession event, then under this arrangement they would lose their right to the inheritance after the death of the surviving spouse. In a recent ruling, it was questionable whether a payment made to one of the final heirs (Schlusserben) should be considered as the payment of a compulsory portion claim.
The Higher Regional Court (Oberlandesgericht, OLG) in Braunschweig, in its decision of 13.2.2025 (case reference: 10 W 11/25), ruled on a case where, in 1971 in a so-called Berlin Will, spouses had mutually appointed each other as heirs and their children T and S as final heirs. The will contained a so-called compulsory portion penalty clause; according to this, if one child asserted their compulsory portion claim in the first succession event, then under this arrangement they would lose their right to the inheritance after the death of the surviving spouse. This meant that, in the second succession event, the child would at most still receive their compulsory portion and no longer their statutory share in the estate.
Request for financial support ...
After the death of the father, the surviving wife (E) and her two children concluded a private written agreement. According to that, the daughter T received DM110,000 from her mother as financial support for the building of a house. At the same time, T declared that this payment would compensate all the claims arising from the father’s estate. Several year’s later, E created a handwritten will where she made reference to the agreement. Here, she stated that T, owing to the gift received, had already received more than S and that was why, after her (E’s) death, S should receive, in advance, a specific building plot for a house; the remaining assets were to go to both children in equal shares. After the death of the mother, the son S applied for a certificate of inheritance identifying him as the sole heir. To substantiate this, he pointed out that the payment received by T had compensated her for her compulsory portion claim after the death of the father and, therefore, in accordance with the compulsory portion penalty clause she was excluded from the succession following the mother’s death.
... not a compulsory portion claim
The OLG Braunschweig did not accept this argument. In its decision it clarified that the agreement concluded between the mother and daughter did not trigger the compulsory portion penalty clause. The application of a sanction via the compulsory portion penalty clause generally requires the final heir, objectively, to expressly and seriously demand the compulsory portion and, however, act subjectively with knowledge of the clause.
In the present case, the court did not regard the payment of DM110,000 as such an assertion. While the initiative came from T it was nevertheless a request for financial support for the building of a house. This was a voluntary gift and was not made under the pressure of a demand for a compulsory portion. Vis-à-vis her mother, T did not act as a beneficiary of a compulsory portion. Moreover, safeguarding mechanisms that are typically linked to compulsory portion penalty clauses (preserving the estate for the surviving spouse, protection against family burdens, and ensuring distributive justice in the final succession) - with the exception of the latter aspect - were not adversely impacted. The testator was not especially financially burdened as a result of the payment. If the distributive justice was disrupted then this was not attributable to the disloyal behaviour of T, but potentially to an unclear agreement.
Amendment solely with an escape clause
As a consequence, the succession was determined by the original notarised will of the spouses. In the case of joint wills of spouses, where the spouses mutually appoint each other as heirs and specify their children as final heirs, following the death of the first spouse, the will has a binding effect for the benefit of the final heirs that have been appointed. An amendment by the surviving spouse would only be possible if provision had been made for a so-called escape clause. Depending on the arrangement, this may be restricted to specific circumstances or persons (e.g., certain children). In the absence of such an escape clause and if an amendment nevertheless occurs, then this would only be possible by concluding a notarised agreement waiving the bequest. Therein the final heirs would relinquish their binding status that resulted from the first death.
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