Contestation of the acceptance of the inheritance

Pursuant to § 1956 of the Civil Code failure to comply with the disclaimer deadline can be challenged in the same way as acceptance of the inheritance. In this case, the general grounds for contestation apply (BGH, judgment of 29 June 2016, Ref. IV ZR 387/15 with further references).

A reason for contestation can arise from the error regarding the over-indebtedness of the estate, which is a material characteristic in the sense of § 119 para. 2 BGB (German Civil Code) (BGH, judgment of 8. 2.1989 - IVa ZR 98/87).

The contestation must be declared within 6 weeks (§ 1954 BGB). In the case of contestability due to threat, the period begins at the point in time at which the predicament ceases to exist, in all other cases at the point in time at which the person entitled to contest becomes aware of the reason for the contestation. The time limit is six months if the testator's last residence was only abroad or if the heir is abroad when the time limit begins.

In accordance with § 1957 BGB, contesting the acceptance or contesting the failure to observe the disclaimer period is deemed to be a disclaimer of the inheritance.

For the then open regulation of the succession, the law stipulates in § 1953, Subsection 2, BGB, that according to the heirs declaring the disclaimer, those who would also be heirs if the disclaiming heirs were no longer alive at the time of the inheritance are appointed as heirs. The succession therefore continues. In the case of statutory succession, further succession is based on the disclaimer according to §§ 1925 para. 3 sentence 1, 1924 para. 3 BGB. According to this the children of the rejecting person inherit (succession according to tribes). For this reason it is necessary that the children of the rejecting person also declare the rejection.

In the case of a rejection by the heir designated in the will, the descendants of the rejecting person also inherit in case of doubt according to the interpretation rule of § 2069 BGB. However, this does not have to be the case if a different will of the testator can be established. Nevertheless, in this case, the descendants of the deceased should also always be excluded.

According to § 1956 BGB, the challenge is made by declaration to the probate court, which is responsible for the probate matter according to § 343 FamFG. Usually it is the court in whose district the testator had his last residence. According to § 1956 sentence 2 BGB, the provisions of § 1945 BGB apply to the declaration, i.e. the disclaimer must be submitted for the record of the probate court or in publicly certified form.

§ 344 para. 7 FamFG now expressly stipulates that a declaration of disclaimer is valid and effective within the time limit vis-à-vis the probate court which has no local jurisdiction. The provision covers (cf. Heinemann, FamFG for notaries, marginal no. 285) the acceptance of a disclaimer of inheritance (§ 1945 Para. 1 BGB), the challenge of a disclaimer of inheritance (§ 1955 Sentence 1 Alt. 2 BGB) and - despite not being mentioned - also the challenge under § 2308 Para. 1 BGB and the challenge of an acceptance of inheritance (§§ 1955 Sentence 1 Alt. 1, 1956 BGB).