Premature renunciation of an inheritance: A renunciation based on mere conjecture and vague speculation about the composition of the estate precludes the possibility of challenging the will.
The Higher Regional Court of Düsseldorf ruled in its order of 19 December 2018 (Ref.: I-3 Wx 140/18), that a It is not possible to challenge the renunciation of an inheritance is where the inheritance was renounced solely on the basis of a presumed over-indebtedness of the estate.
This decision was based on the following facts:
The deceased, whose flat was in an extremely filthy and dilapidated state on the day of her death, left her sister as her sole statutory heir. In February 2017, the sister stated on record at the registry of the Local Court that she was renouncing the inheritance on any grounds for appeal, adding that she was unaware of the contents of the estate. The sister assumed that the estate was heavily in debt. She said she had had no opportunity to check what assets her late sister had actually still possessed.
In March 2017, a professional administrator was appointed to safeguard and manage the estate, as the succession had not yet been clarified. The inventory of the estate drawn up by the estate administrator at the end of March 2017 ultimately showed a credit balance of approximately EUR 6,600. The estate was therefore not in a state of insolvency.
In June 2017, the sister contested her renunciation of the inheritance and applied for a certificate of sole inheritance on the basis of intestate succession. The renunciation was based on a mistake regarding a material characteristic of the estate, which had arisen from the condition of the deceased’s flat. The flat had been extremely dirty and cluttered. She had therefore assumed that the costs of clearing out and renovating it would likely exceed the estimated value of the estate.
The Probate Court dismissed the application for a certificate of inheritance. The sister had not validly challenged her declaration of renunciation, as there were no grounds for doing so. The appeal lodged against this decision was also unsuccessful.
The Higher Regional Court of Düsseldorf, like the Probate Court, ruled that there were no grounds for setting aside the transaction. If the challenge is based on a mistake regarding a characteristic of an item that is material to its marketability, (Section 119(2) of the German Civil Code (BGB)), the inheritance is to be regarded as a „thing“ within the meaning of the provision. The estate being over-indebted may constitute a material characteristic justifying a challenge if the error regarding the over-indebtedness stems from a misapprehension as to the composition of the estate, that is, regarding the balance of assets and liabilities. By contrast, a mere error of motive does not justify a challenge.
However, the Senate held that a minor error of motive did exist in this case. Consequently, as there were no grounds for setting aside the transaction, the sister was not entitled to set it aside. Accordingly, „anyone who, without detailed knowledge of the composition of the estate, was under a misconception as to its size„ is not entitled to contest the will. A person “who did not reach the conclusion that they wished to accept or renounce the inheritance on the basis of an assessment of facts known to them or available to them, but who had made their decision on a speculative – deliberately unsubstantiated – basis” cannot invoke a ground for contesting the will. Anyone who merely regards certain circumstances relating to the estate as possible and is guided by them is relying on mere hopes or fears, which form the basis of their actions. Since the sister stated that she had overestimated the costs of clearing out the flat and had therefore assumed that the estate was insolvent, even though she had no specific knowledge of the value of the estate, the conclusion that the estate was insolvent was purely speculative.
The application for a certificate of inheritance submitted by the deceased’s sister was therefore unsuccessful.
This case demonstrates once again how important it is to seek expert legal advice when deciding whether to accept or renounce an inheritance. People often fail to recognise the options available to them.
Are you legal heir Or have you been named as an heir in a will and are unsure whether to accept the inheritance? Please get in touch with us, we will examine the facts and legal situation and work with you to determine the most appropriate course of action. Please bear in mind that time is of the essence: In accordance with. Section 1944(1) of the German Civil Code (BGB) can be a Renunciation must take place within six weeks once you have become aware of the death and the grounds for your appointment as an heir. If you have been appointed as an heir by a testamentary disposition, the time limit does not begin until the probate court has notified you of the testamentary disposition, Section 1944(2) of the German Civil Code (BGB). Only in cases of inheritance with an international element – namely where the deceased’s last place of residence was exclusively abroad, or where the heir was residing abroad at the start of the period – is the time limit six months, Section 1944(3) of the German Civil Code (BGB). In this respect, swift action is called for.