Donation of land for the benefit of the mother: Intent to prejudice or self-interest during the testator’s lifetime in the case of a testator bound by a joint will
In its partial judgement of 18 November 2021, the Regional Court of Koblenz (Ref.: 1 O 222/18) ruled that the gift of a plot of land to a child during the donor’s lifetime is valid under certain conditions, even if the will designated a different child as the sole heir to that specific plot of land.
The partial judgement is based on the following facts:
On 1 April 1969, a married couple drew up an unregistered will in which they named each other as sole heirs. Their three children were named as final heirs. One of the sons, the claimant, was to receive a specific plot of land.
Following the death of their father in 1974, their mother inherited as the preliminary heir and the children became the subsequent heirs.
On 14 August 2014, the mother transferred another plot of land from the estate to her daughter. She also transferred to her daughter her co-ownership share in the plot of land that was actually intended for the brother at a later date. Furthermore, the mother granted her daughter a free, lifelong right of residence and use of the garden in respect of this plot of land. In 2015, the mother granted her daughter a notarised power of attorney.
The claimant, who is a son, and the defendant, who is a daughter, were in dispute over this very gift following their mother’s death. The claimant, the defendant and the third child, a brother, formed a community of heirs.
The claimant argues that the sister’s mother gifted the property solely to reduce his inheritance as a result of a personal falling-out. The mother did not gift the property to her daughter in return for any care. Furthermore, such care was not provided to an extent commensurate with the value of the property. The transfer of the property and the granting of the right to use the house and garden contravene Section 2287(1) of the German Civil Code (BGB), which also applies to joint wills. The testator, with the intention of prejudicing the claimant as the contractual heir within the meaning of the Section 2287 of the German Civil Code (BGB) traded.
The defendant argues that she provided her mother with intensive care during her lifetime, which justifies the gifts. Section 2287(1) of the German Civil Code (BGB) is not relevant, because the gifts at issue are in any event justified by the testator’s evident self-interest during her lifetime.
The defendant sought the return of the plot of land which he was to receive, for his own benefit, and the transfer of the other plot of land to the community of heirs. In addition, he sought authorisation to have the right to use the house and garden struck off the register.
The Regional Court dismissed the claim as unfounded.
The contractual heir may, in accordance with Section 2287(1) of the German Civil Code (BGB) upon the opening of the succession, in the event that the testator, in the If a person has made a gift with the intention of prejudicing the contractual heirs, they may demand that the recipient return the gift. According to the case law of the Federal Court of Justice (Federal Court of Justice [BGH], NJW-RR 2012, 207 et seq.) does this rule apply to reciprocal testamentary dispositions in a joint will, which became irrevocable following the death of the first deceased, to be applied accordingly.
Only minimal requirements are needed with regard to the Intent to cause harm of the testator. It is therefore sufficient for the testator to knows that by passing it on free of charge, he is diminishing the inheritance. However, according to the case law of the highest court, an assessment of whether there has been an abuse of rights is then carried out. The testator must have abused his remaining right to make dispositions during his lifetime.
A claim for the return of the gift would therefore only arise if the testator had made the gift in an abusive manner, solely with the intention of prejudicing the inheritance of the son bringing the action.
Provided that the testator had a personal interest during his or her lifetime in the gift he or she made, there is no abuse. Such an interest is presumed to exist if, in the judgement of an objective observer, the disposition appears to be reasonable and justified in the light of the circumstances, even taking into account the obligation under the contract of inheritance. A Such an interest may exist where the testator is concerned about his or her care and support in old age or if the testator intended the gift to be a token of gratitude to someone.
The fact that the recipient is bound to the testator by the gift, in order to secure their own care, also constitutes a legitimate interest on the part of the testator.
The claimant would have had to prove the absence of such a personal interest, which he was unable to do. The Regional Court found that the deceased mother had a significant personal interest in the gift to her daughter.
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