Recognizing and avoiding wills that require interpretation

The drafting of wills and the interpretation of a will, which is often necessary after the inheritance, are two sides of the same coin. It is true that an experienced will drafter tries to avoid the later need for interpretation of a will from the outset. After all, the old saying that you are in God's hands in court and on the high seas applies particularly in the area of interpretation. Nevertheless, not only handwritten wills but also notarized wills often contain unclear wording or are incomplete.

For example, if a testator names "mom" as his sole heir in his will, it must be clarified who he meant, his wife (= mother of his children) or his mother? However, the questions to be clarified by way of interpretation are usually much more difficult. This applies in particular to incomplete wills. The question here is what provisions the testator would have made if he had foreseen the omission. The question is therefore based on a fictitious, assumed will ("what would he have arranged if he had seen the problem?") in relation to the time the will was drawn up. This also applies if the will was drawn up years or decades ago, as in the following example:

The wealthy, childless widower Dr. Peter Müller had appointed his brother Frank Müller as his sole heir in a notarized will from 1981 and bequeathed one property each to ten other people who were close to him and to some of whom he was related. In particular, his godson Bernd, who lives with his family in Austria, was to receive a vacation property in Austria. However, when Dr. Müller died in 2008, he no longer owned the condominium. Rather, it had been sold by his brother Frank Müller in 2005 on the basis of a notarized general power of attorney. Shortly after the death, the sole heir Frank Müller initially informed the godson that the proceeds of the sale had been invested in a separate account and were still available today. He also agreed to transfer the proceeds of the sale to the godson. A short time later, however, he changed his mind and refused to hand over the proceeds of the sale. To justify his refusal, he stated that the notarized will did not mention at all that in the event of the sale of a property, the proceeds of the sale should replace the bequest as a so-called surrogate. Therefore, the bequest was already invalid by law. Also, by way of supplementary interpretation of the will, it could not be inferred from the will at any point as the will of the testator that the legatee was to be bequeathed the proceeds in place of the object sold. The godson subsequently filed a lawsuit and attempted to avoid the pitfall posed by the law by way of supplementary interpretation.

However, the intended legatee bears the full burden of presentation and proof for such an action. He is the one who, figuratively speaking, is swimming against the current due to the incomplete will. He must therefore demonstrate and prove (1.) that the will contains a gap, (2.) that it is an unconscious gap, i.e. a gap that was not foreseen and accepted from the outset, (3.) what the testator would have ordered if he had seen the gap ("determination of the hypothetical will by thinking the will through to the end") and (4.) that the assumed will determined in the third step is at least implied by the will. Only if the judge can be convinced at all four steps will the action be successful. Otherwise, the plaintiff bears the entire costs of the proceedings, i.e. the court costs and the legal fees of both his own lawyer and the opposing lawyer. The problem here is that each of the four steps can be challenged and is regularly challenged in such court proceedings.

In this particular case, the godson was successful, even though the entire proceedings cost him a lot of time and nerves. Nevertheless, such proceedings should be avoided at the outset if at all possible and wills should not be subject to interpretation. However, if - as is often the case in practice - interpretation proceedings do occur, they do have one good thing. They are important because they sharpen the litigating lawyer's perspective and he can use the wealth of experience gained in this way to draft wills that avoid disputes and do not require interpretation.

Status: 23.10.2016