Claim for the return of a plot of land that has been given as a gift where the testator’s personal interest in the gift during his or her lifetime is not deemed to be legitimate (Judgment of the Higher Regional Court of Hamm of 14 September 2017, Case No. 10 U 1/17)
Time and again, people find themselves in a situation where an inheritance is followed by a rude awakening – namely, when what they had actually expected is no longer to be found in the estate. As a general rule, everyone is free to do as they please with their assets whilst they are alive; in other words, they are also free to simply give away something of great value. However, under very specific conditions, the contractual heirs or residual heirs may successfully bring a Claim for restitution against the recipient of the gift assert, if the testator, during his or her lifetime, no legitimate personal interest in making the gift had.
The aforementioned judgement was based on the following facts:
The claimant and the defendant, along with two other siblings, are the children of the deceased. The parties’ parents were the owners of a plot of land which was initially undivided in legal terms but was visually divided into two areas. One area comprised the house in which the parents lived, together with a terrace and garden, whilst the other, undeveloped area consisted of a meadow.
In a notarised inheritance agreement drawn up in 1991, the parents appointed each other as heirs and stipulated that, following the death of the longer-living parent, the defendant should receive the property and that their remaining assets should be divided equally amongst the other children, as the defendant had agreed to remain in his parents’ home to care for them in their old age.
In the years that followed, the defendant renovated the house at his own expense so that he and his family could live on the upper floor and his parents on the ground floor.
In 2001, the parents divided the plot into two parcels in accordance with the existing areas (house with garden and undeveloped meadow). In 2003, the parents transferred the plot containing the residential house to the defendant, granting themselves a life-long right of residence by way of anticipated succession. Over the years, the defendant’s siblings each received a total of approximately EUR 90,000 as gifts, also by way of anticipated succession.
Following the death of his mother, the testator – who was her sole heir – transferred the undeveloped meadow plot to the defendant by way of a gift. He argued that, when the notarised inheritance agreement was concluded in 1991, it had been agreed with his wife that the defendant was to receive the entire plot of land, which at that time was still undivided.
The certificate of inheritance issued to the defendant’s three siblings identified them as the testator’s heirs, each entitled to one-third of the estate.
The claimant therefore demanded that his brother, the defendant, transfer a one-third share of co-ownership in the undeveloped meadow plot to him. In support of his claim, the claimant argued that his parents had always distinguished between the „house“ and the „meadow“. Consequently, when the inheritance agreement was concluded, only the built-up part of the plot had been allocated to the defendant, with the result that the undeveloped part of the plot should have gone to the other children.
The defendant took the view that it had been in accordance with the parents’ wishes to transfer to him the entire plot of land, which had not yet been divided at the time the inheritance agreement was concluded. The monetary gifts to his siblings were to be understood as a form of settlement. By subsequently gifting the meadow plot, the father had merely carried out the parents’ joint intention. Furthermore, in view of the investments and care services that had been provided and were expected, the defendant had also had a personal interest in the gift during his parents’ lifetime.
The Higher Regional Court of Hamm concluded that, by transferring the meadow plot to the defendant by way of a gift, the testator had infringed the claimant’s rights as a contractual heir. The inheritance contract was to be interpreted as meaning that only the house – and not the meadow plot – had been bequeathed to the defendant. The three siblings should have received the meadow plot as part of the „remaining estate“. The court based its judgement on the consistent and credible witness statements, according to which the parents had repeatedly stated that the house was for the defendant and the meadow was for the three siblings.
Furthermore, the testator lacked any legitimate personal interest in the gift during his lifetime, as he was aware that the gift, made without consideration, would reduce the inheritance of his other siblings. If the testator makes a gift of substantial assets primarily as a result of a change of mind aimed at rectifying a disposition of property upon death, the existence of a personal interest on the part of the donor or the testator during his or her lifetime is rejected.
In the present case, the defendant had failed to conclusively establish the circumstances of such a personal interest on the part of the testator during his lifetime. In the court’s view, the investments made in the conversion of the residential property or the care and nursing services provided for the parents did not constitute a recognisable personal interest on the part of the testator in gifting the meadow plot. In particular, the improvements that increased the property’s value would benefit exclusively the defendant as the current owner of the land.
Consequently, the defendant was required to return the meadow plot to his siblings and was therefore unsuccessful in the legal proceedings.
Not every gift can be reclaimed. It always depends on the individual circumstances of each case, as well as on the terms of the joint will or inheritance agreement that has become binding.
Do you have any questions about gifts made as part of an anticipated succession or about any claims for restitution that the heirs may have? We’d be happy to advise you!