Forfeiture clause (inheritance law)
A forfeiture clause (also collectible clause or privatorial clause ) is a provision in a disposition due to death . It should lead to the heir losing his claim if he takes a certain action.
A special forfeiture clause is the so-called social clause .
From a legal point of view, such clauses are considered a condition subsequent. The heir becomes “full heir” (with all rights and obligations). However, the thoughtful loses the grant as soon as he violates the forfeiture clause. He is disinherited with the result that the former "full heir" becomes the previous heir. With the fulfillment of the condition, an after-inheritance comes into effect.
The interpretation of the forfeiture clause may potentially harbor considerable potential for conflict and can counteract the testator's main aim of ensuring peace among the heirs after his death.
Goal setting
Forfeiture clauses should
- permanently enforce the last and true will of the testator,
- Avoid disputes among heirs.
The forfeiture clause threatens a potential troublemaker with disinheritance or the establishment of a compulsory portion.
Germany
The admissibility of these clauses is not explicitly regulated in the BGB itself. However, they are largely considered admissible by both doctrine and jurisprudence. This is partly justified with the private autonomy of the testator.
Austria
In Austrian inheritance law , the forfeiture clause is expressly regulated in Section 712 (2) of the Austrian Commercial Code. After this paragraph is an arrangement of the deceased, making it the heirs or legatees prohibits (legatee) with a threatened withdrawal of an advantage to contest the last will. If, however, according to § 712 öABGB, only the authenticity or the meaning of the declaration is contested by the heir, the forfeiture clause does not come into effect. Doctrine and jurisprudence in Austria have also worked out other cases in which the inheritance can take action against the content of the forfeiture clause without sanction . If the heir can achieve that the content of the forfeiture clause is regarded by the court as invalid, he may under certain circumstances bring down the forfeiture clause himself, although this would otherwise result in the loss of the benefit.
Liechtenstein
In Liechtenstein, the provisions of Section 720 FL-ABGB from the Austrian Code of Law, Section 712 Paragraph 2 ÖABGB were adopted and are structured in a similar manner.
Examples
Common formulations in a will are e.g. For example: " Anyone who opposes the instructions in my will ... ", " Anyone who starts a quarrel ... ", " Anyone who causes strife after my death ... " or " Anyone who rebels against my will ... ", " if an heir has this and that does or does not do, should ... "
literature
Claudia Baumann: Inheritance law forfeiture clauses , Heymann Verlag, Marburg 2009, Univ., Diss., 2008/2009, ISBN 978-3-452-27227-0
