The Higher Regional Court of Cologne recently ruled that Estate liabilities including those for the Determination of the value of the estate under Section 2314(1) of the German Civil Code (BGB) incurred Cost of an expert report are.
However, expert’s fees do not constitute estate liabilities, if it is not the heir but the person entitled to a compulsory share who, on their own initiative, commissions a valuation report. In such a case, the costs of the legal proceedings within the meaning of Section 91 of the Code of Civil Procedure (ZPO) would be recoverable, provided that the commissioning of the private valuation report was necessary (Higher Regional Court of Cologne, order of 16 April 2018, 17 W 39/18).
Originally, the claimant asserted claims for a compulsory share against the defendants as heirs. In the course of the proceedings, the defendants (heirs) commissioned an expert to determine the value of a flat, after they had been ordered to do so by a partial judgment of admission. This incurred costs amounting to EUR 1,518.61. In its judgment regarding the costs of the legal proceedings, the Regional Court of Cologne ruled that the claimant was to bear 70 % and the defendants 30 % of the costs of the proceedings.
The defendants subsequently submitted, amongst other things, the costs incurred by them in connection with the private expert report for assessment. They take the view that these constitute costs of the proceedings, which should be apportioned in accordance with the Regional Court’s order on costs. The valuation report was of decisive importance in quantifying the claimant’s claim to a compulsory share. These costs are therefore not estate liabilities. Furthermore, the claimant did not at any time prior to the proceedings request that they submit a valuation report.
The claimant takes the view that, as a beneficiary of a compulsory share of the estate, he was entitled to a comprehensive right to information. This also includes the value of individual items in the estate. The costs incurred in this regard should therefore be borne by the defendants, as heirs, as liabilities of the estate.
The judicial officer determined the costs incurred in obtaining the private expert opinion in accordance with the defendant’s application, as the private expert opinion had been obtained in connection with a specific legal dispute and had been taken into account by the court in its judgment. She did not grant the plaintiff’s immediate appeal and referred the matter to the Senate for a decision.
The court concluded that the immediate appeal was successful and that the order fixing costs should be set aside.
According to. Section 2314(1), first sentence, of the German Civil Code (BGB) As heirs, the defendants are obliged to provide the person entitled to a compulsory share with information, upon request, regarding the composition of the estate. That person is also entitled to a Claim for valuation pursuant to Section 2314(1), second sentence, of the German Civil Code (BGB) . The value of the estate’s assets is determined by an expert report drawn up by an impartial and independent expert (Federal Court of Justice (BGH) judgement of 19 April 1989, Case No.: IVa ZR 85/88). The costs incurred in this regard are borne by the estate and are therefore estate liabilities, Section 2314(2) of the German Civil Code (BGB).
The legal situation is different if it is not the heir but the person entitled to a compulsory share who, as the party entitled to information, has a valuation report drawn up of their own accord. They cannot pass on the costs incurred in this regard to the estate. These costs are then Costs of the proceedings under Section 91 of the Code of Civil Procedure (ZPO). Eligibility for reimbursement depends on whether it was necessary to obtain the private valuation report in order to fulfil the duty to provide evidence in the proceedings, and not on whether the person entitled to a compulsory share was entitled to a claim for a valuation under section 2314(1), second sentence, of the German Civil Code (BGB).
If, in the course of ongoing legal proceedings, the heir commissions a private expert report in order to refute or undermine a court-appointed expert report on valuation, or to ensure a „level playing field“ vis-à-vis the opposing party, these costs are also regarded as costs of the legal proceedings under Section 91 of the German Code of Civil Procedure (ZPO), which are borne by the parties in accordance with who prevails or loses the case.
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