Correction to the Land Register: Proof of inheritance by means of a certificate of inheritance required in the case of a private-script will that has previously been placed in safekeeping and subsequently opened
If the testator has not drawn up a notarised will, but rather a handwritten will has drawn up, the heir must, in the land register rectification proceedings, submit to the land registry office, for the purpose of proving inheritance, a Certificate of inheritance has been produced. This was the ruling of the Munich Higher Regional Court in its order of 25 July 2018 (Ref.: 34 Wx 174/18).
The testator owned a flat and, in a private will, had appointed his daughter, the applicant, as sole heir. The testator had also appointed an executor. The testator deposited the will with the competent local court for official safekeeping.
Following the opening of the succession, the executor transferred the title to the property to the daughter, whereupon she sought to have the title to the flat transferred from the deceased to herself as the new owner at the Land Registry by way of a correction to the Land Register.
The Land Registry rejected the application for a correction to the land register on the grounds that the applicant had not provided evidence of her right to inherit. According to. Section 35(1) of the Land Registry Act (GBO) This is only possible upon presentation of a certificate of inheritance if the testator drew up a private will rather than a notarised will.
The applicant lodged an appeal against this decision with the Higher Regional Court. She takes the view that the fact that the private will had been held in official custody and that the succession had been clearly settled means that it is not necessary to produce a certificate of inheritance.
The Higher Regional Court did not share this view and dismissed the appeal, ordering the appellant to pay the costs. According to Section 35(1), first sentence, of the GBO the succession must be proven to the Land Registry by means of a certificate of inheritance or, alternatively, by a disposition of property upon death contained in a public document. A public document requires that the declaration be „recorded in the prescribed form by a public authority within the limits of its official powers, or by a person vested with public authority within the scope of their assigned duties“. If this definition is taken as a basis, the private will submitted is not, in this sense, a public document.
The fact that the private will was held in public custody and was opened by a local court does not mean that the private will becomes a public document. The applicant must therefore first apply to the probate court for a certificate of inheritance and then submit this to the Land Registry so that she can be entered in the Land Register as the new owner.
This is disadvantageous for the heir in that applying for a certificate of inheritance incurs significant costs, which depend on the total value of the estate. In addition, costs are also incurred for the correction of the land register. These, however, depend on the value of the property. That said, this land register correction fee is not charged if the application for registration is submitted to the land registry office within two years of the opening of the succession. In this respect, it is advisable to Apply for a correction to the land register as soon as possible.
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