The LG Koblenz recently had to grapple with the following problem in an inheritance dispute: A married couple who have drawn up a joint will have set up each other as previous heirs. After her husband died, the widow, who was still alive and who had become the previous heir, gave her daughter a piece of land which, according to the spouse’s testament, should actually go to the son. Can the son, as the final heir, reclaim the lifelong donation of this property by the testator to the daughter who will also inherit it? A case in the middle of life, which gives reason to deal more closely with the exam-relevant inheritance law and the law of enrichment.
The parties are siblings. Her parents made a will in 1969, in which the spouses mutually use each other as sole heirs and their children as final heirs. This type of will is known as the “Berlin Testament”. After the death of the last deceased spouse, the plaintiff should under this will received a certain property as the sole heir. The father of the parties died first, so that the mother became the previous heir. The parties and one other brother became heirs. Long after the death of her husband, the mother and at that time the sole heiress transferred a piece of land to her daughter – the defendant – free of charge as well as her co-ownership share in the land in question in K. In addition, the daughter received free lifelong apartment and living space in relation to the property in question in K Garden use right. In addition, it gave the defendant a notarial power of attorney.
The plaintiff alleges that the parties’ mother, who has since passed away, had no self-interest in this donation. Rather, she acted with the intention of impairing the plaintiff. According to the plaintiff, the value of the property transferred and the money already flowing to the defendant during the mother’s lifetime exceeded the value of the services provided by the defendant by a considerable amount. He sought the transfer of the property to himself before the District Court and the other property transferred during his lifetime to the community of heirs. In addition, he sought approval of the deletion of the right to use housing and garden in the land register with the lawsuit.
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District Court: §§ 818 ff. BGB (-)
The LG Koblenz refused to surrender the donation – i.e. the property or part of the property – in accordance with the provisions on the surrender of unjustified enrichment on the basis of the following reason: The heir can only request the surrender of the gift in accordance with Section 2287 I BGB, if the testator made the donation with the intention of impairing the heir.
Because in § 2287 I BGB it says:
(1) If the testator has made a donation with the intention of impairing the heir to the contract, the heir to the contract may, after the inheritance has accrued to him, demand that the donee surrender the gift in accordance with the provisions on the surrender of an unjust enrichment.
In principle, this is already the case if the testator knows that the donation is reducing the inheritance. However, since the testator almost always knows this, an abuse test is additionally required according to the highest court rulings. According to the definition of the BGH, there is no abuse despite the knowledge of the impairment of the inheritance if the testator had a lifelong self-interest in the donation made. Self-interest comes into consideration when the testator is concerned with his care and, if necessary, care in old age or when the testator fulfills a moral obligation by donating because he wants to thank a person who has helped him in particular. A lifetime self-interest exists, for example,
No improper impairment detected
The heir who wants to reclaim the gift has to prove that the testator is not interested in himself. The LG Koblenz saw the evidence of improper impairment here as not given. There was a lifelong self-interest of the testator in the donation.
Based on the evidence, the court was convinced that the defendant had provided very substantial care and support services for her mother both before the donation and afterwards. She accompanied the testator in numerous everyday matters, ran errands and looked after the household and supported her mother in financial matters.
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The District Court classified these support actions as considerable, although the actual care of the testator was only required after the donation, so that an abuse of the power of disposal is ruled out. Another argument of the court was that the deceased’s considerable need for care would otherwise have led to extremely high costs for an outpatient care service in order to be able to stay in the house as she wished. In addition, inpatient accommodation in a nursing home would have resulted in considerable costs, which would also have diminished the legacy.
The District Court, therefore, recognized a clear self-interest of the deceased mother in the donation to the daughter. The brother therefore has no right to the surrender of the land to himself or to the community of heirs.
The verdict is not yet legally binding
At the request of the public prosecutor, the Advocate General ordered the search of the accused with the aim of finding evidence in the form of falsified yellow vaccination cards, stamps and stickers, vaccination certificates, mobile phones and computers as well as data carriers. It was then searched and various items that were assigned to the accused and / or relatives were confiscated.
On the other hand, then the complaint, which was successful at the District Court. The Regional Court lifted the seizure. It denied an initial assumption and gave comprehensive reasons for it.
Since in the meantime the legal situation has been changed by the “Law amending the Infection Protection Act and other laws on the occasion of the repeal of the determination of the epidemic situation of national scope” of November 22nd, 2021 (Federal Law Gazette I p. 4906), which came into force on November 24th, 2021, changed, I have only set the facts and (my) guiding principle for the decision. It’s running:
“Vaccination cards are basically to be regarded as” health certificates “within the meaning of § 277 StGB (old version), but criminal liability is ruled out under the old law if they are only sold for presentation in pharmacies in order to obtain the corresponding digital vaccination certificates.”