Invalid renunciation of an inheritance by the legal representative of a minor heir due to the expiry of the time limit during a brief stay abroad
During the coronavirus pandemic, day trips to neighbouring countries are not always possible. Nevertheless, trips and travel abroad will eventually return to ‚normal‘. And it is precisely then that the conditions under which the extended six-month period for renouncing citizenship of the Section 1944(3) of the German Civil Code (BGB) applies and what exactly constitutes a „stay abroad“ within the meaning of the provision. There is an interesting ruling by the Federal Court of Justice (BGH) on this subject (ruling of 16 January 2019, ref.: IV ZB 20/18).
The Federal Court of Justice (BGH) ruled that a stay abroad within the meaning of Section 1944(3) of the German Civil Code (BGB) does not apply in any event if, at the start of the period, one of the two legal representatives of a minor heir is abroad for only a few hours on a day trip and is scheduled to return to their place of residence in Germany on the same day.
This decision was based on the following abridged statement of facts:
The testator died in 2016. In a valid will, she appointed her two sons, the parties B1 and B2, as co-heirs in equal shares. The reversionary heirs of her son B2 were to be his two sons, the party B4 and B5, who was still a minor at the time of the testator’s death.
On 28 December 2016, the testator’s will was opened by the probate court and sent to B1 and B2. On 19 January 2017, copies of the will were sent to the reversionary heirs B4 and B5. On 7 February 2017, B1 and B2 renounced the inheritance within the prescribed time limit, relying on Section 2306(1) of the German Civil Code (BGB), whereby the renunciation was intended to relate solely to the ground of appeal as testamentary preliminary heirs. In the event that B1 and B2 were subsequently to be considered as intestate heirs, they would accept the inheritance. On 23 February 2017, B4 renounced the inheritance on all conceivable grounds. In a letter dated 16 March 2017, the probate court informed B2 and his wife F that, following the renunciation of the inheritance by B1 and B2, B5 was likely to have become the heir. On 6 September 2017, B5’s parents (B2, the father, and F, the mother) renounced the inheritance on all possible grounds for renunciation.
Consequently, B1 and B2 applied for the issue of a joint certificate of inheritance as the deceased’s intestate heirs, as all the testamentary heirs had renounced the inheritance. They stated that, together with B5, they had been on a day trip to Denmark on the day the letter from the probate court dated 16 March 2017 arrived, from which they had returned as planned on the same day. F, the wife and mother, who had not taken part in the trip, had informed B2 of the contents of the letter by telephone whilst they were still on the trip. Due to the day trip to a neighbouring country, the six-month time limit set out in Section 1944(3) of the German Civil Code (BGB) applies, with the result that B2 and F, as B5’s legal representatives, had renounced the inheritance within the prescribed time limit and statutory succession had therefore taken effect.
The Probate Court and the Higher Regional Court of Schleswig dismissed the application by B1 and B2 for the issue of a joint certificate of inheritance on the basis of intestate succession. B1 pursued his application by lodging an appeal on points of law.
The Federal Court of Justice (BGH) upheld the Higher Regional Court’s (OLG) ruling that statutory succession had not taken effect, as B5 had not validly renounced the inheritance. Under Section 1944(3) of the German Civil Code (BGB), the time limit for renouncing an inheritance is six months if the testator’s last place of residence was abroad or if the heir is residing abroad at the start of the time limit. A day trip abroad by the heir is, in any event, not covered by this provision. The term „stay“ within the meaning of Section 1944(3) of the German Civil Code (BGB) is not interpreted uniformly. The decisive factors are, on the one hand, the relationship to other legal terms and, on the other hand, the purpose of the statutory provision. The concept of „stay“ differs from that of ‘domicile’ in that the intention to make the place of stay the centre of one’s life is not required. It is recognised that, for a stay to be deemed to have taken place, an actual presence at a specific location for a certain period of time is sufficient. Furthermore, the meaning and purpose of the provision must be taken into account: Section 1944(3) of the German Civil Code (BGB) is intended to address the communication problems faced by an heir if they are abroad at the time the time limit begins to run, meaning that they “can only obtain the relevant information about the inheritance and its factual and legal implications with considerable difficulty”. Taking the foregoing into account, the Federal Court of Justice (BGH) ruled that, in the case of a day trip to a neighbouring country (in this instance, from North Frisia to Denmark) lasting a few hours, there was no scope for the extended time limit for renouncing the inheritance under Section 1944(3) of the German Civil Code (BGB) to apply. There were no particular communication difficulties between the legal representatives B2 and F – the latter of whom informed her husband by telephone of the probate court’s letter immediately upon receipt – which could not have been discussed even after B2’s return on the same day. B5 consequently became the sole testamentary heir.
The plan by the parties involved to circumvent the testator’s will – which appointed B1 and B2 as preliminary heirs and B4 and B5 as subsequent heirs – by means of the disclaimers, in order ultimately to achieve the desired statutory succession in favour of B1 and B2, has therefore failed. The Federal Court of Justice (BGH) expressly referred to collusive cooperation between the parties and regarded this as an attempt to circumvent the will.
This case illustrates the importance of the time limit for renouncing an inheritance and the consequences that may arise if this time limit is missed. Only in exceptional cases is it possible to challenge the failure to meet the deadline for renouncing an inheritance under Section 1956 of the German Civil Code (BGB). You should therefore not rely on this under any circumstances. If you are a potential heir and have any questions regarding the calculation of the deadline or its application, we would be happy to assist you. Please feel free to arrange an appointment.
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