Federal Court of Justice, Order of 2 June 2016 – V ZB 3/14
In legal practice, it is often said that the advantage of a notarised will is that the heirs do not need a certificate of inheritance; instead, once the will has been opened, they can act immediately on the basis of the notarised will and the minutes of the opening, and, above all, can thereby amend the land register.
However, the situation is different if a notarised will contains a general forfeiture clause, or where the conduct required under a specific forfeiture clause cannot be clearly established. In such cases, a certificate of inheritance is normally required to prove that succession has taken place, as the Federal Court of Justice (BGH) held in its decision of 2 June 2016 – V ZB 3 / 14 has established.
The case concerned a situation in which, following the death of the second parent, the Land Registry had registered the three children as the new owners of their parents’ properties, as a community of heirs, on the basis of a notarised will. The will on which this succession was based included a clause at the end which read as follows:
„Anyone who does not agree with these provisions of the will shall receive only the statutory share, taking into account what they have already received from us during our lifetime, including the costs of their education, provision of household goods, or other gifts.“
Following the death of the first parent, one child had claimed the statutory share of the father’s estate from the surviving mother and had reached a settlement with her. The other two children objected to the entry of all three children in the land register. They took the view that, due to his behaviour, the other child had not become a co-heir.
The Federal Court of Justice (BGH) did not have to rule on how the clause in the will should be interpreted. However, the BGH found that the Land Registry should not have proceeded with the registration without the presentation of a certificate of inheritance.
Only if the succession following the registered owner is determined by a notarised will and this succession has taken place unconditionally is this sufficient within the meaning of Section 35(1), second sentence, first clause of the GBO the notarised will, together with the minutes of its opening, as the basis for registration. In the case of a conditional appointment of an heir, proof by means of the notarised will alone is no longer sufficient. This also applies to wills containing so-called ‘compulsory portion penalty clauses’. Here too, the Land Registry must either require the presentation of a certificate of inheritance or, at the very least, a declaration by the heirs in the form specified in section 29 of the Land Registry Act (GBO) stating that they have not claimed their statutory share.
In the case decided here, it was not a penalty clause relating to the compulsory share, but a forfeiture clause which made the appointment of an heir subject to the resolutive condition of a specific course of conduct. What exactly is meant requires an interpretation of the will. To this end, the testator’s intention must be ascertained; however, this will not normally be possible in the land registry registration procedure, as the Land Registry can only accept evidence in the form of public documents or documents certified by a public authority, and the Land Registry may otherwise only take into account circumstances that are manifest, but not other circumstances which, under substantive law, must be considered when determining the testator’s intention. In this respect, the Land Registry must, according to Section 35(1), first sentence, of the GBO request a certificate of inheritance.
So not every notarised will saves you the cost of a certificate of inheritance.
We’d be happy to assist you with our A team of specialist solicitors in inheritance and tax law when drawing up your will or enforcing your rights under a will.