The contract of inheritance ( BGB ; lat. Pactum successorium ) is next to the Testament under German law the second option, by testamentary disposition to adopt rules on the whereabouts of their own or joint property after death and of to deviate from the legal succession ., § et seq.
The main difference to the will (synonym: testamentary disposition , compare BGB, conceptually often confused with the generic term of disposition due to death) is that the testator is bound by the inheritance contract with his contractual partner. It is not an obligation of the testator in the sense of the law of obligations. But while the person who is considered in a will has no legal means of preventing a revocation of the will, he gains a secure position in the inheritance contract in the form of an entitlement .
The inheritance contract can be combined with other, non-inheritance transactions (such as the transfer of real estate) or - very often in practice - with a marriage contract . Therefore there is also the marriage and inheritance contract .
Nature of the inheritance contract
The inheritance contract must be concluded personally by the testator and with the simultaneous presence of all contractual partners in front of a notary ( BGB). A contract partner who does not make any dispositions due to death can, however, be represented by a third party . The contract of inheritance is next to the testamentary capacity because of the existence of a contractor in accordance with para. 1 BGB also unlimited capacity ahead.
In accordance with the contract , i.e. with a binding effect on the testator's contractual partner, only the appointments of heirs, legacies and conditions can be decreed. In addition, the testator can unilaterally, ie without contractual obligation, also make other willing dispositions, such as ordering an execution of the will .
The inheritance contract can not only be concluded unilaterally, both (or even several) contractual partners can also make testamentary dispositions (contractual and unilateral) in the inheritance contract. This is particularly often the case with an inheritance contract between spouses when they mutually appoint each other as sole heirs.
The contractual disposition binds the testator. A later testamentary disposition contradicting the contractual disposition is ineffective. In contrast, the testator remains free in the case of dispositions among the living in accordance with donation , which is common in practice (example: the contractually bound testator gives away substantial parts of his assets to third parties ). Such impairing gifts are effective, but the heir to the contract can, after the death of the testator, demand the surrender of the gift from the recipient if the donation was made with the intention of depriving the heir of the contract. The Federal Court of Justice defines this intention to impair the donation as meaning that the testator must not have had a lifetime self-interest in the donation.BGB. He can do whatever he wants with his assets during his lifetime. This results in the problem of the impairing
If the testator has not reserved any right of revocation or withdrawal in the inheritance contract, he is also bound by his contractual dispositions, such as the appointment of the heir, granted (advance) legacies and / or conditions in accordance with BGB . The binding effect of the inheritance contract can, however, be broken. Based on the real will of the testator, a contract of inheritance should also be based on this, which is why the legal system protects declarations of will that are free from any errors or predicaments that have been caused by threats or the like.
2278 BGB therefore gives everyone affected by the inheritance contract a legal possibility of correction by granting a right of avoidance . The testator himself can be affected, but also regularly the legal heirs . Since the effective contestation results in the invalidity of the inheritance contract, the testator can consequently regulate his succession in a different manner if he is challenged. The grounds for avoidance recognized by the legal system are the same as those that justify the avoidance of a will. In this respect, (1) BGB refers to Sections 2078 f. BGB. In addition to errors of content, errors that result from overlooking a person entitled to a compulsory portion , be it from ignorance of the person or also after the contract was established, come into consideration .
The testator must submit his own declaration of contestation personally and have it notarized, determined by representative is not conceivable here. The declaration must be submitted to the inheritance contract partner, in the event of his pre-death, to the probate court . Persons other than the testator himself always appeal against the probate court according to BGB. The deadline for contesting an inheritance contract is one year after becoming aware of the grounds for contestation and is regulated in Sections 2283 BGB (for the testator) and 2082 BGB (for other persons entitled to contest). If the testator has confirmed a contestable inheritance contract during his lifetime, the rights of contestation of all those affected by the inheritance contract are lost in accordance with §§ 2284, 2285 BGB.BGB. Even a legal
If there is a reason for avoidance and the challenge of the inheritance contract has been declared in due form and in due time, the deceased's disposition, insofar as it is affected by the reason for avoidance, is void and therefore ineffective. In the case of a mutual inheritance contract, an effective challenge usually leads to the nullity of the entire inheritance contract,BGB.
Despite various regulations on death, Roman law did not recognize contracts of inheritance. Testamentary dispositions over the objects subject to inheritance ( hereditas ) were to be held unilaterally revocable at any time under Roman inheritance law. It was not until the 14th century that the legal institution of the customarily recognized inheritance contract (main application: Confraternity) developed from the old German law . A special form of legal transaction appointment of an heir connected to an adoption was in salfränkischen legal widespread Affatomie .
The inheritance contracts concluded between members of large noble families or ruling dynasties were particularly important in history. In this way it was not uncommon for a long, independent territory to come under the rule of a neighboring principality. See also: inheritance ; but also Rostock inheritance contract .
- Gunter Wesener : On the doctrine of the contract of inheritance in the German usus modernus pandectarum and in natural law , in: Ways of European legal history. Karl Kroeschell on his 60th birthday (Frankfurt / Main-Bern 1987) pp. 507–622.
- Wolfgang Edenhofer in Palandt , Bürgerliches Gesetzbuch, 66th edition, Munich 2007, ISBN 3-406-55266-8 , §§ 2274 ff (fourth section. Inheritance contract).
- Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , p. 339.
- Katrin Degert: The legal status of the final heirs in Community Testament. In: Münchner Legal Papers , Vol. 14. Herbert Utz Verlag, 2001. P. 79 ff.