Disinheritance: Strict formal and substantive requirements
In its judgement of 11 March 2021, the Regional Court of Frankenthal (Ref.: 8 O 308/20) ruled that, for the deprivation of a compulsory share to be valid, strict requirements must be met in terms of both form and substance. It is not sufficient for the valid deprivation of a compulsory share that a testator, in his or her will, states the reason for withdrawal. This is merely a formal requirement for the validity of a disinheritance. However, this does not alter the fact that this ground in must also exist in reality and be proven.
The decision is based on the following facts:
The claimant is the sole descendant of the testator and her predeceased husband. In her notarised will, the testator had appointed the defendant, an association, as her sole heir.
On 6 December 1996, the incident – the details of which are in dispute – took place, which was intended to justify the disinheritance. A physical altercation occurred between the testator and the claimant, during which the testator sustained a contusion to the skull. Both the claimant and the testator sought treatment at hospital and filed criminal complaints against one another. The criminal proceedings were subsequently discontinued without the facts of the case being fully clarified.
On 8 April 1997, the testator and her husband, the claimant’s father, drew up a notarised inheritance agreement in which they appointed each other as sole heirs and designated the claimant’s daughter as the residual heir. They expressly reserved the right for the longer-living spouse to revoke the appointment of the residual heir. The testator subsequently did so by a will dated 11 October 2019.
In the 1997 inheritance agreement, the couple stipulated the withdrawal of the statutory share, both in the event of the death of the first spouse and that of the last surviving spouse. They justified the exclusion on the grounds that, at around 7.00 pm on 6 December 1996, their son had struck his mother several times in the face with the flat of his hand. As a result of the blows, the mother suffered nausea and a brief loss of consciousness. The attending doctor later diagnosed a contusion to the skull. They attached to the inheritance agreement the police confirmation of the filing of a criminal complaint dated 8 December 1996, as well as the medical certificate from the attending doctor dated 6 December 1996.
Following the father’s death, a legal dispute arose between the testator and the claimant regarding the statutory share, which was settled out of court.
The claimant is now bringing a claim against the defendant, as sole heir, for payment of the compulsory share from the estate of their mother, the last to die.
The claimant argues that the deprivation of the statutory share is invalid as there is no ground justifying it. He claims that the incident has been misrepresented; the dispute was initiated by the mother.
The defendant argues that the background to the dispute at the time was a large loan taken out by the parents to finance their son’s studies. He had dropped out of university and squandered the money.
The Regional Court upheld the claim, ruling that the defendant must pay the claimant 50 per cent of the statutory share.
After Section 2333(2) of the German Civil Code (BGB) Can the testator deprive a descendant of their statutory share if the descendant has committed a a crime or a serious intentional offence committed against one of the persons referred to in paragraph 1, that is, against the testator, the testator’s spouse, another descendant or a person similarly close to the testator. Minor intentional physical abuse is sufficient, provided that the descendant’s conduct also constitutes a serious breach of filial duty, a „serious breach of the familial respect owed to the testator“.
In addition to the notice of revocation pursuant to Section 2336(1) of the German Civil Code (BGB) must also the will must set out the relevant facts of the case. It is necessary to specify, to a certain extent, the grounds on which the testator intends to base the disinheritance. There is no need to provide a legal classification in this regard.
However, the deprivation of the compulsory share is invalid on these formal grounds alone. The Any significant misconduct must be clearly described in the will. This was intended to prevent further grounds from being added at a later date. The spouses had specifically omitted to state in the inheritance agreement what had led to the dispute and what the consequences had been. The defendant then described this from his point of view during the oral hearing.
Even if one were to regard the grounds for revocation as sufficient, this would not lead to the action being dismissed. This is because the physical assaults against the testator, of which the claimant is accused, cannot be established. Pursuant to Section 2336(3) of the German Civil Code (BGB), the burden of proof regarding the grounds for disinheritance rests with the party asserting the disinheritance. In this case, the association is unable to meet this burden, as the grounds for disinheritance cannot be substantiated in factual terms. The mere fact that a testator describes a set of facts in their will or communicates them to the notary drawing up the will does not prove that those facts actually occurred.
The report from the hospital or the doctor cannot provide proof, as, according to the claimant, the deceased, in a sort of self-defence situation, he had pushed the deceased away from him, so that she may also have sustained a skull contusion as a result, which was subsequently confirmed by the doctor who examined her.
In addition to the declaration of disinheritance, a reason must therefore be given, which in turn sets out the facts of the case. The misconduct must be clearly apparent from these facts. Furthermore, testators must also, during their lifetime, the possibility of seeking a court order to establish the right to forfeit the compulsory share. This helps to prevent the heir from facing a lack of evidence at a later stage if they wish to rely on the deprivation of the compulsory share and are required to prove the conditions for such deprivation in the event of a dispute.
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