Requirements for the preparation of an estate register by an authorised notary
In a legal dispute between an heiress and legatees, which went through all levels of the courts and involved a sought-after enforcement order as well as an action to oppose enforcement, the final appeal lodged resulted in a final ruling by the Federal Court of Justice (Ref.: I ZB 40/23).
In its ruling of 7 March 2024, the Federal Court of Justice (BGH) clarified that the requirements for a notarial inventory of the estate, in order to fulfil an heir’s obligation towards those entitled to a compulsory share, are not unlimited; rather, a notary’s duty to identify the assets of the estate and the heirs’ duty to cooperate in this identification are only ever justified where there are specific indications of further possible assets forming part of the estate.
The complex and multifaceted proceedings were based on the following facts:
The testator appointed her surviving daughter as sole heir and bequeathed a property in Austria to her two granddaughters, the daughters of her second daughter, who had predeceased her.
The granddaughters were of the view that they could assert claims for a compulsory share and a supplementary compulsory share against their aunt. In the previous proceedings, one of the granddaughters sought the production of a list of gifts made by the deceased, whilst both granddaughters jointly sought the production of an inventory of the estate.
The heir subsequently did indeed submit such an inventory of the estate and a further supplement to it; the claim seeking an overview of further gifts was dismissed as unfounded. However, the legatees and those entitled to a compulsory share consistently maintained that the estate inventory did not satisfy the requirements of the heir’s duty to provide information, whereupon they lodged several appeals and, ultimately, an appeal to the Federal Court of Justice (BGH).
The Federal Court of Justice ruled as follows on the admissible appeal on points of law:
The legatees’ appeal is unfounded; the appeal court of the lower instance was right to dismiss the application to enforce the judgment against the heir’s estate as unfounded.
Like the appeal court before it, the Federal Court of Justice (BGH) also held that the heiress had fulfilled her duty to provide information by submitting the inventory of the estate, thereby enabling her to effectively oppose the enforcement proceedings sought by the sisters. The heir had already fully complied with her obligation – which had previously been established by a court order – to submit an inventory of the estate, and therefore there was no longer any claim that could be enforced.
In their submissions regarding the sought-after enforcement proceedings and the incompleteness of the estate inventory, the sisters stated that the latter contained no details of any further accounts held by the deceased at banks or building societies in Austria other than those specifically listed, and that the inventory did not include any details of further gifts made by the deceased in the ten years prior to her death.
The scope of the Obligation to provide information and Submission of a notarised inventory of the estate According to the Federal Court of Justice (BGH), it is generally calculated as follows:
If a notary is appointed to draw up an inventory of the estate, they have considerable discretion in determining the procedure for drawing up the inventory. They must first take the information provided by the heirs as a basis and then carry out any investigations of their own that may be „an objective third party in the creditor’s position would consider necessary“ carry out. The notary may, under certain circumstances, be required to ask the heirs to provide the necessary assistance in obtaining information about the estate.
A notary must therefore carry out their own enquiries when drawing up an inventory of the estate in order to identify all the assets in the estate.
According to the Federal Court of Justice (BGH), however, this duty to investigate does not extend beyond what is objectively necessary: the notary is only required to undertake further enquiries if he receives specific indications of possible additional estate assets, for example through information provided by the heirs themselves, by other persons interviewed, or if he can deduce such indications from the available documents. However, he is specifically not obliged to, „to investigate in every conceivable direction, without any concrete leads, in order to trace further estate assets“.
In this specific case, therefore, the notary was under no obligation to search for any further potential accounts held by the deceased, given that there were no indications whatsoever that such accounts existed. Apart from that, the notary was not authorised in the present case to access such account details; only a bailiff could carry out such an interference with the right to informational self-determination, subject to strict conditions, in the course of enforcing monetary claims.
In the present case, the two sisters in particular, as beneficiaries of the compulsory share, had not provided any specific details of further accounts that might have formed part of the estate. A mere assumption that the information provided by the heiress was incomplete, and a mere assumption that further accounts might exist, are not sufficient!
Mere speculation does not warrant further investigation.
Nor was the heiress herself obliged to play a further part in the search for additional estate assets, in the absence of any concrete evidence.
Nor is there any further obligation to include the testator’s gifts in the inventory of the estate, since, in the present case, it was precisely this claim that was dismissed by the court as unfounded; nor can the enforceable obligation to submit an estate inventory be interpreted as including an additional duty to specify gifts previously made by the testator as part of a „fictitious estate“ can be taken from.
Practical note: The drawing up of an inventory of the estate is not subject to any insurmountable requirements. A person entitled to a compulsory share cannot be required to provide information on every alleged item forming part of the estate.
Are you yourself entitled to a compulsory share, or are you required to fulfil a duty to provide information as an heir? We can advise and support you in disputes relating to inheritance law and can be contacted by email at willkommen@gwgl-hamburg.de or by telephone on 040/300 39 86-0 We’re here for you and look forward to hearing from you or reading your messages.