Your will can have unimaginable consequences

Recently, Agder Court of Appeal handed down a very surprising judgement that should serve as a warning to anyone writing wills and joint wills.

Until 22 November 2017, there has never been a judgement interpreting irrevocability in a will as long as it is not clear from the wording of the will. Some legal theorists have argued that it should be possible to interpret irrevocability into a will. However, the overall legal theory has concluded that the legal rule is that this is not possible.


A brief factual presentation of the case is as follows:

• Husband (now 90 years old) and wife (b. in 1934) wrote a joint will in 1998 under the heading Mutual Will. The will is not characterised by reciprocity (that the testators bequeath to each other). The parties agree before the Court of Appeal that it is a joint will.

In the will, the spouses distribute the inheritance after both have died to the wife's two children.

• The husband (longest living spouse) has no children and the wife (first deceased spouse) has two children from previous relationships.
• In 1991, seven years before the will was written, the wife's children gave their consent for the husband to sit in the undivided estate if the wife died first.
• The wife dies in 2010 and the husband, as the surviving spouse, takes over the undivided estate.
• In the period from 2011 to 2015, the surviving spouse made changes to the will and had a dialogue with his wife's children about the fact that he wanted to mortgage the property and buy a more easily maintained apartment. The husband and wife had talked about this before the wife died in 2010.
• The wife's children object and announce legal action if the husband disposes of the property in such a way that the property cannot pass to them unencumbered when the husband is dead.
• The man wins in the conciliation board, but is convicted in the district court and the court of appeal (dissent 2-1):

«A, born *.*.1972 [should probably be 1927] is forbidden to make legal dispositions over the property gnr. a, bnr. b, Y on Justøya in Lillesand municipality either by will, sale or other form of disposal, by borrowing and other pledging or other legal dispositions that prevent or could prevent or limit B's opportunity to later receive this property as inheritance.

• The will does not mention a single word about the will being an inheritance agreement that cannot be changed. In spite of this, the majority of Agder Lagmanns believes that the will should be interpreted to mean that the parties intended that the will could not be changed. It is implied that an inheritance agreement has been made. There is no evidence in the case other than that the surviving spouse believes that irrevocability was not agreed in the will, and that the first deceased spouse's children believe that their mother has told them that the will cannot be changed.

Interested parties can read the entire judgement on Lovdata, https://lovdata.no/dokument/LASIV/avgjorelse/la-2017-48049?q=LA-2017-48049

I am highly critical of the judgement. The judgement means that the legal position has changed. In my view, the evidence in the case can hardly be said to qualify for a strict burden of proof, as theorists and the Court of Appeal itself say must be applied if a will is to be interpreted as irrevocable. The judgement is not final and it has been announced that the case will be appealed to the Supreme Court.

For the time being, it must be concluded that more than ever, wills can be interpreted as being irrevocable, even though the main rule is still that wills can be revoked freely. This also applies to joint wills, where the surviving spouse (or cohabitant) can revoke for their part.

The problem can easily be avoided by being aware of which testamentary competence the surviving spouse or cohabitant should have. In addition, the testator should be aware of whether the surviving spouse/cohabitant should have limited access to certain assets after the death of the first-deceased spouse. If the testator and the lawyer assisting in the drafting of the will are aware of this issue, there will never be any doubt about what the testator intended.