Contract of inheritance
 

Are donations effective despite an inheritance contract?

If spouses appoint each other as sole heirs and at the same time designate the heirs of the last deceased (often the children), the surviving spouse remains free to dispose of his or her assets during his or her lifetime. The surviving spouse is not prevented from spending his or her own assets and the assets gained through inheritance after the first deceased spouse.

However, if the surviving spouse makes gifts to other persons during his or her lifetime, the gift may be invalid with respect to the contractual heir.

When can the contractual heir demand the surrender of the gift?

In any case, the contractual heir can only demand the surrender of the gift from the presentee after the death of the testator. For example, Section 2287 of the German Civil Code stipulates that the contractual heir, after the inheritance has accrued to him, can demand the surrender of the gift from the presentee in accordance with the provisions on the surrender of unjust enrichment if the testator has made a gift with the intention of adversely affecting the contractual heir.

What is a prerequisite for a claim of the contractual heir to the surrender of the gift?

An essential prerequisite for the claim against the donee, i.e. the heir's intention to disadvantage the contractual heir, is the intention of the testator. Since the intention to discriminate is usually inseparably connected with the intention to benefit the presentee, it would practically always be given in such a situation - except in exceptional cases. Nevertheless, according to the opinion of the BGH, § 2287 BGB should not necessarily intervene with every gift (see BGH, decision of 26 October 2011 - IV ZR 72/11). Rather, the prerequisite for a claim of the heirs against the donee is that the testator has abused the right to make lifetime dispositions that remains with him. Such abuse does not exist if the testator had a lifelong self-interest in the gift he made. In general, the Federal Court of Justice wants to assume a lifelong self-interest if, according to the judgement of an objective observer, the disposition appears to be reasonable and justified in view of the given circumstances, also taking into account the contractual obligations under the inheritance contract. Such an interest may be considered if the testator is concerned about his or her provision and, if necessary, care in old age (Federal Court of Justice, judgment of 27 January 1982 - IVa ZR 240/80) or if the testator is acting in the fulfilment of a moral obligation, for example, if he or she wishes to express his or her gratitude by giving a gift to a person who has helped him or her to a special degree

When examining the lifelong self-interest, the concrete life circumstances are important in the individual case. The courts must examine whether the gift was actually made in the interest of the testator or only to correct the inheritance contract to the disadvantage of the contractual heir. Thus for example the OLG Celle in its resolution of 15.06.2006 - implements:

"The testator acted rather exclusively in the strange interest of the deplored ones, whereby it is insignificant that this interest from its view could be plausible and legitimate. The decisive point is that the right of usufruct (granted to the defendant) for the time after the death of the testator should not have been and in fact has not been linked to any benefits in his favor during his lifetime. Rather, the testator's decision ... was based solely on concern for her welfare. The Regional Court also correctly included in its consideration of the possible interests of the testator at the time of the notarial appointment of the usufruct right that at that time it was not to be expected that the testator would be dependent in future on care services or other benefits of third parties in old age and that it should be the defendant who ... should care for and look after the testator in old age. Finally the regional court also considered that the common property of the parents of the plaintiff after the death of the in each case surviving spouse is entitled to the common children and should not benefit a third party, which had no share in the development of this property and the usufruct right devalued the inherited real estate economically in the long term. In this respect, the legitimate interests and comprehensible expectations of spouses must be taken into account when drafting a joint will in favour of the heirs in question. Such interests, which the spouses make their own and to which they are subsequently bound, supersede the interests of third parties, who neither participate in the formation of the inherited property nor in any other way establish the surviving spouse's own interests."

This attitude of the OLG Celle rather rejecting in relation to a lively self-interest confirms the OLG Munich in its judgement of 23.11.2016 - 3 U 796/16.

The OLG Munich explains in its decision of 23.11.2016 - 3 U 796/16 that a recognizable lifelong self-interest can be missing for example also if the testator wanted to express affection and gratitude by the donation afterwards opposite the presentee. There is also no cheap life-time self-interest for compulsory gifts (§§ 534, 1624 BGB) which exceed every reasonable measure. Nor does the donor's motive of having given insufficient consideration to a person in his dispositions on account of death and his consequent endeavour to correct an inheritance contract in favour of the spouse justify in itself a cheap life-long self-interest in making gifts.

The heir to the contract or the final heir has the burden of proof for the gift without justifiable lifetime self-interest.