A grandson’s right to a compulsory share (Judgment of the Higher Regional Court of Hamm of 26 October 2017, Ref. No.: 0 U 31/17)
In practice, it is not always clear-cut who is entitled to a compulsory share.
The Higher Regional Court of Hamm had ruled on A grandchild’s claims to a compulsory share and a supplementary compulsory share to rule against his grandfather’s co-heirs, as appointed in the will, whilst the claimant’s family ties were in dispute.
In these proceedings, a grandson brought claims for a compulsory share and a supplementary compulsory share against the heirs of his grandfather (the testator) pursuant to. Sections 2303, 2309 and 2325 of the German Civil Code (BGB) successfully asserted this in court, even though the grandfather had both disinherited his son – the claimant’s father – and deprived him of his statutory share. The grounds for the disinheritance and the deprivation of the compulsory share were the undisputed drug addiction and a final conviction for assault committed by the claimant’s father against the testator. The testator subsequently appointed his partner and his brother as heirs, each to receive a ½ share. After the heirs had divided up the substantial estate, the claimant brought a staged action to enforce his claim to the compulsory portion and the supplementary compulsory portion, which was largely successful at both first and second instance.
In the present proceedings, one point at issue was whether the claimant was, in fact, the testator’s grandson and thus entitled to a compulsory share. In this case, the claimant’s father – the testator’s son – had acknowledged the claimant immediately after his birth. This was evident from the birth certificate submitted. Whether the claimant was in fact the biological son was not decisive. Rather, what mattered here was the claimant’s legal descent from his father. The court was also right to disregard any possible motives for the acknowledgement of paternity.
As a distant descendant of the deceased, the claimant was entitled to a compulsory share and a supplementary compulsory share in accordance with. Section 2309 of the German Civil Code (BGB) Accordingly, more distant descendants of the testator (in this case: the grandson) are not entitled to a compulsory share to the extent that a descendant who would exclude them in the event of intestate succession (in this case: the claimant’s father) is entitled to claim the compulsory share or accepts the inheritance left to him. At the time, the testator had both validly disinherited his drug-addicted son – the claimant’s father – who had been violent towards him, and also denied him the compulsory share in accordance with. Section 2333 of the German Civil Code (BGB) effectively withdrawn.
Consequently, the claimant was the next closest descendant. Unlike his father, the claimant has not lost his right to a compulsory share. This is because the valid disinheritance of the claimant’s father did not preclude the claimant’s own right to inherit and to a compulsory share. In his notarised will, the testator ordered the deprivation of the statutory share only in respect of his son, but not in respect of the son’s descendants.
Consequently, the claimant was ultimately entitled to a statutory share and a supplementary statutory share totalling over EUR 900,000. The objection raised against this on the grounds of impoverishment pursuant to. Section 818(3) of the German Civil Code (BGB) With regard to the tax liability to be paid by the defendant, the court did not recognise it. This tax liability constituted a personal debt of the heir and was not to be taken into account in the calculation of the compulsory share.
Do you have any questions about potential claims to a statutory share or a supplementary statutory share? We’d be happy to advise you!