Unworthiness of inheritance
With the unworthiness of inheritance (both with the legal as well as with the voluntary succession ) it should be determined that a certain person does not have the right to inherit. The details are regulated in §§ 2339 ff. BGB .
Anyone who would benefit from the cessation of this person as an heir can submit the application, i.e. the person who moves up in the (legal) succession or whose share of the inheritance increases due to the cessation of the unworthy of inheritance.
Action for rescission and period of rescission
The contestation can only take place by way of a structural action through a contestation suit (or counterclaim ) at the local or regional court (depending on the amount in dispute ), i.e. not by a simple declaration of contestation. An assertion of unworthiness as an objection is excluded, as is an incidence determination in the certificate of inheritance procedure .
The avoidance period is one year from knowledge of the reason for avoidance, at the latest 30 years after the inheritance. Avoidance is excluded, however, if the testator himself has forgiven the person unworthy of inheritance ( § 2343 BGB).
Effects on compulsory portion and legacy
A person who is not worthy of inheritance is at the same time not entitled to receive a compulsory portion or a legacy , cf. Section 2345 BGB.
Reasons for the unworthiness of inheritance
- Willful (and unlawful) killing of the testator (or attempted killing) with the exception of killing on demand
- Placing the testator in a state that made it impossible for him to draw up a will (or to change or revoke it )
- Fraudulent misrepresentation or threats have led the testator to draw up or set aside a will
- Forgery of wills
Acts committed in a state of incapacity to act ( Section 827 BGB) do not justify unworthiness to inherit. A detailed specification of the legal grounds for unworthiness of inheritance took place through the case law.
Latest case law on this (guiding principle)
BGH, judgment of March 11, 2015 - IV ZR 400/14
- According to § 2339 Abs. 1 Nr. 1 BGB, the heir (here: spouse) who tries to kill the deceased who has not been legally competent for years (§§ 212, 213 StGB) is also unworthy of inheritance. This applies in any case where the deceased no living will has left, no killing in accordance with § 216 of the Criminal Code is present on request, the heir not ff the procedure under §§ 1901a. BGB has complied and also otherwise not actually uttered will of the deceased at the termination of life-sustaining Measures can be determined.
- In the cases of Section 2339 Paragraph 1 No. 1 of the German Civil Code, unworthiness of inheritance presupposes that the agent is responsible.
Austria
In Austria, the unworthiness of inheritance is regulated in the second part of the eighth main part of the general civil code . Accordingly, it is unworthy of inheritance
- who has committed a criminal offense against the deceased or the estate ( § 539 ABGB)
- who has intentionally thwarted or tried to thwart the realization of the deceased's true last will ( § 540 ABGB)
- who has committed a criminal offense against the spouse, registered partner or domestic partner of the deceased or against his relatives in a straight line ( § 541 ABGB)
- who has caused the deceased in a reprehensible way severe emotional suffering ( § 541 ABGB) or
- who has otherwise grossly neglected his or her obligations arising from the legal relationship between parents and children towards the deceased ( § 541 ABGB)
and the deceased has shown no pardon.
In the case of legal succession, the descendants of the unworthy of inheritance take their place. ( § 542 ABGB - descendants' right of entry)
Individual evidence
- ↑ BGH, judgment of March 11, 2015 - IV ZR 400/14
- ↑ OLG Frankfurt, judgment of October 29, 2010 , Az. 21 U 9/10, full text.
- ↑ NJW 2015, 1382, full text at https://dejure.org/2015,5464
