The testator has made several wills - How to deal with this?

 

In practice, it happens time and again that testators leave several wills, especially if they are uncertain about the regulation of their estate. This can be particularly problematic if the contents of the wills are contradictory.

In principle, testators are free to make several wills with the same content and to keep these documents in different places. Often, particularly distrustful testators want to ensure that at least one of the wills is found after their death.

However, there is no problem if the different wills merely complement each other and do not conflict. An example would be if a testator names his heirs in a first will and specifies a bequest in favor of a particular person in a second will. Both documents are valid, provided they each meet the required formalities, and can coexist.

Difficulties arise when, after the testator's death, two or more wills appear that contain contradictions in content. An example of this would be if the testator named his son as sole heir in a 1996 will and ten years later disinherited his son in a 2006 will and named his brother as sole heir instead. In such cases, clarification is usually required.

In most cases, however, it is not difficult to determine the legal consequences of the two wills, provided the testator has acted carefully.

In order to ensure legal clarity, it is strongly recommended to clarify in a second, chronologically later will how the chronologically earlier dispositions are to be dealt with. If the intention is to completely reorganize the succession, it makes sense to preface the chronologically later will with the following clarifying sentence:

 

"I hereby revoke in full all dispositions previously made by me."

 

Provided that the testator is not restricted by inheritance law obligations in a joint will or inheritance contract, such a clarifying sentence enables the succession and other inheritance law provisions to be redrafted from scratch.

If none of the wills contains such a clarifying sentence, the statutory provision of Section 2258 of the Civil Code applies. Pursuant to Section 2258(1) of the Civil Code, the making of a later will cancels an earlier will to the extent that it conflicts with the later will.

It is therefore decisive for the revocation of a chronologically earlier will that the content of the chronologically later will is factually in conflict with the chronologically earlier will. It does not matter whether the testator was aware that he was invalidating the temporally earlier will.

 

Which will is valid in the absence of dating?

The dating of a will is not a formal requirement that renders the entire will invalid if it is missing. However, dating is important for probative value, especially when multiple wills exist. Therefore, it can be problematic if the testator made two undated wills.

If the wills are not dated, it must be determined which is the earlier will and which is the later will based on the circumstances of the individual case.

 

What happens if the wills are the same date?

If, when the wills are the same date, it cannot be clearly determined which is the earlier will and which is the later will, they are presumed to be contemporaneous. In such cases, conflicting wills become ineffective as a whole, and neither will takes precedence over the other. This means that paragraph 1 of Section 2258 of the Civil Code does not apply in this case.

If one of the same-dated wills is a joint will with interrelated dispositions, the joint will retains its validity. If the wills contain joint dispositions, they may continue to be effective even if they refer to the lowest common denominator. An example of this is individuals who are named as co-heirs in both wills, but at different inheritance rates. In such cases, the persons named in the common denominator may inherit at least at the lower inheritance rate, and intestate succession does not apply to that portion.