A “Berliner Testament” is a popular form of will in Germany among spouses, as it enables them to provide each other with financial security and mutually appoint one another as sole heirs. However, it also entails disadvantages such as its strong binding effect.
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: A Berliner Testament provides spouses with the opportunity to circumvent the rules of intestate succession and mutually appoint each other as sole heirs. Normally, the children are then designated as final heirs. The major advantage of a Berliner Testament is that the surviving spouse is financially secure should the other spouse die. This means, for instance, that the former is able to continue using the co-owned property. Nonetheless, it ought to be noted that the children are entitled to assert their claim to a compulsory portion. For this reason, it may be advisable to include so-called “Pflichtteilsstrafklauseln” (compulsory portion penalty clauses) in the will.
Having said all of that, one should also be mindful of the disadvantages of a Berliner Testament, including the strong binding effect associated with this kind of testamentary disposition. As long as both spouses are still alive, it remains possible in principle to change the provisions of a Berliner Testament at any time. However, this can only happen as a result of joint action by both parties; unilateral actions or orders are invalid and ineffective. In the event that one of the spouses dies, the remaining partner is bound by the joint provisions in the will. This has the potential to become problematic, e.g. if the surviving spouse subsequently wishes to appoint different final heirs for whatever reason. Even if the remaining partner were to remarry and possibly have more children, he or she will still be faced with any adverse consequences resulting from the joint spousal will.
It is, however, also possible to agree to what are termed “Öffnungsklauseln” (opening clauses) in order to lessen the strong binding effect of a Berliner Testament. This type of clause can be used to exempt the partner from this binding effect in relation to specific points or allow him to alter the entire will. Anyone who wishes to include these kinds of clauses in a will can turn to lawyers who are competent in the field of succession law. They are able to ensure that the wording is legally “watertight” and that no legal disputes arise among the heirs. Lawyers who are experienced in the field of succession law can advise on all matters pertaining to wills and contracts of inheritance.
http://www.grprainer.com/en/legal-advice/law-of-succession/last-will-and-testament.html
