Limitation period for a claim to a compulsory share by a person lacking legal capacity
The point at which the limitation period for a claim to a compulsory share by a person lacking legal capacity begins to run shall be determined by the appointment of the guardian or carer and their knowledge of the matter.
Anyone who is entitled to a compulsory share by a close relative was disinherited, must be done when Asserting his claim to a compulsory share always the Please note the limitation period. This is because the right to a compulsory share becomes time-barred within three years, with the time limit commencing at the end of the year in which the person entitled to a compulsory share becomes aware of their disinheritance and of the identity of the debtor (i.e. the heir or heirs). But what is the situation in the case of a person lacking legal capacity? Should the relevant point in time be based on their own knowledge or on that of their legal guardian or carer? The Higher Regional Court of Hamm ruled on this question in its judgement of 22 December 2020 (Ref.: 10 U 103/19).
The judgment is based on the following abridged statement of facts:
The testator was the father of two adult children (his daughter T and his son S). T is legally incapable of managing her own affairs due to a severe intellectual disability and has been living on social security for decades. In 1987, the father transferred two properties to S free of charge. In 1989, the father, who until then had also been T’s guardian, died. Shortly after the testator’s death, S took over the guardianship of his sister. Under the joint will, the testator’s wife – the children’s mother – became his sole heir. She died in 2015. S succeeded her as her sole heir.
In September 2017, the defendant sent the claimant – the social welfare authority – an inventory of the estate left by the mother. According to this, the estate was of no value. Consequently, in October 2017, the claimant assumed T’s claims to a compulsory share and a supplementary compulsory share arising from the inheritance following her father’s death, against which the defendant lodged an objection within the prescribed time limit.
The claimant then asserted claims for a supplementary compulsory share on the basis of a right that had been transferred to him, by way of a staged action. At the information stage, he sought a valuation, to be carried out by means of expert reports, of the plots of land transferred to S free of charge. S subsequently raised the defence of the limitation period.
The claimant argued that the limitation period had been suspended due to an impediment to representation. As T’s legal guardian, the defendant should, following his father’s death, first have asserted claims for a compulsory share and a supplementary compulsory share against his mother as sole heir. Following his mother’s death, the defendant should then have asserted T’s claims against himself as his mother’s sole heir. The limitation period only began to run from the date of the change in the holder of the claim, following the transfer from T to the claimant in 2017.
The defendant assumed that the claimant had not validly assumed T’s claims for payment of the statutory share and supplementary statutory share following the father’s death. As more than 29 years had elapsed since the father’s death, the claim was time-barred.
At first instance, the defendant was ordered, by way of a partial judgement, to have an expert valuation report drawn up for the two properties transferred to him.
The defendant’s appeal was directed against this ruling, and he continued to pursue his application for the claim to be dismissed in its entirety.
On appeal, the judges ruled in favour of the defendant. The claim for a supplementary statutory share, which had been transferred from T to the claimant in accordance with. Section 2325 of the German Civil Code (BGB) is time-barred in the same way as the claim for a valuation pursuant to. Section 2314(1), second sentence, of the German Civil Code (BGB).
In the present case, the limitation period for the claim for a supplementary compulsory portion pursuant to Section 2325 of the German Civil Code (BGB) was determined in accordance with. Article 229, Section 23(1) of the EGBGB under the old law, as the provisions on the limitation period in the version of the German Civil Code (BGB) in force since 1 January 2010 apply only to claims existing on that date which had not yet become time-barred. However, the beneficiary’s claim for a supplementary compulsory portion was already time-barred under the old law. This claim became time-barred in accordance with. Section 2332(1) of the German Civil Code (BGB), as previously in force. in principle within three years, with the time limit commencing from the date on which the person entitled to a compulsory share becomes aware of the opening of the succession and of the disposition affecting their rights.
However, as regards knowledge, the focus in the present case should not be on T, but on the defendant as T’s legal representative, Section 166(1) of the German Civil Code (BGB). On 5 February 1990, the defendant was appointed as T’s guardian, with the result that the limitation period expired at the end of 5 February 1993.
The same applies, in effect, to the claim for a valuation asserted by the claimant pursuant to section 2314(1), second sentence, of the German Civil Code (BGB). However, in contrast to the claim for a supplementary compulsory portion, the provisions in force since 1 January 2010 applied in this case, as at that time (i.e. on 1 January 2010) the claimant’s claim for a valuation had not yet become time-barred. Under the old law (Section 195 of the German Civil Code (BGB), old version) the general limitation period was 30 years from the date on which the claim arose (i.e. from the date of inheritance). Under the new law (Section 195 of the German Civil Code (BGB), as amended), however, the standard limitation period is now only three years from the date the new law came into force, i.e. from 1 January 2010. Consequently, the claim for a valuation was also time-barred on 1 January 2013.
Furthermore, in the judges’ view, the limitation period did not apply in this case because Section 206 of the German Civil Code (BGB), old version (now: Section 210 of the German Civil Code (BGB), new version) suspended, as there was no impediment to representation. Accordingly, the limitation period running in favour of or against a person lacking legal capacity (…) who has no legal representative does not commence until six months have elapsed from the date on which that person acquired full legal capacity or the lack of representation was remedied. There was no impediment to representation, as S was, according to Section 1795 of the German Civil Code (BGB) was not precluded from acting on behalf of T. Under this provision, the guardian is precluded from acting on behalf of the ward in certain legal transactions. However, this does not include the ward bringing an action or lodging an application to initiate proceedings against the guardian or one of the guardian’s relatives. The defendant was therefore free to decide whether or not to bring legal proceedings to assert T’s claims against the mother as the sole heir of the father. However, the defendant lawfully chose not to do so until the limitation period had expired. Consequently, the claim was unsuccessful.
This case once again highlights the importance of the limitation period. Once the limitation period has expired, all claims can no longer be enforced, even if they existed previously.
Furthermore, in this case, as we understand it, the parents – given their particular family circumstances – do not appear to have drawn up a so-called ‘disability will’, which contains favourable >special provisions relating to a child with a physical or mental disability. The aim of such testamentary dispositions is to ensure that the disabled child continues to receive full state support despite receiving an inheritance, without the inherited assets having to be used for this purpose. However, this requires comprehensive and precise provisions in the will, which make legal or notarial advice essential.
Have you been disinherited and are you considering claiming your statutory share, or are claims for a statutory share being made against you as the (sole) heir? Or do you have questions about wills for people with disabilities or other inheritance law matters, including your rights and obligations? Please feel free to arrange a consultation.
You can contact us by email at willkommen@gwgl-hamburg.de or by telephone on 040/300 39 86-0 there for you.