- Notarial Certification Not Required To Declare Rescission of a Contract Of Inheritance
- July 31, 2013
- Law Firm: GRP Rainer LLP - Office
- A testator’s instruction to the notary to communicate the rescission of a contract of inheritance to the probate court does not require separate notarial certification.
GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Bremen, Düsseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg and Stuttgart www.grprainer.com/en explains: In its judgment of July 10, 2013 (Az.: IV ZR 224/12), the German Federal Court of Justice (BGH) ruled that the declaration does not require any separate notarial certification. The BGH had to reach a decision in a case in which the parties disputed the position of heir after the death of the testator in 2010. In 2002, the testator had concluded a contract of inheritance with his first wife in favour of a foundation set up by him. After his first wife had died and the testator had remarried, the testator appointed his wife as his sole heir with a testamentary disposition and declared the rescission of the contract of inheritance by means of notarial deed. The foundation benefiting from the contract of inheritance took the view that the declaration also needed to be certified.
The BGH has now ruled that the declaration does not require any separate notarial certification. With this, the widow of a well-known Frankfurter brewery owner has become sole heir to her husband. The contract of inheritance was effectively rescinded by the testator. The effective rescission of a contract of inheritance only requires the declaration of the rescission of a notarial certification, not, by contrast, the testator’s declaration vis-à-vis the notary to communicate the rescission of a contract of inheritance to the probate court.
The contract of inheritance is, like the will, a so-called disposition mortis causa. It has to be concluded before a notary. By means of a contract of inheritance, the testator can regulate the designation of an heir, legacies and restrictions for the heirs.
The testator must also give thought to the effects of a contract of inheritance while he is still alive. This equally applies to the question of whether the testator can potentially disengage himself from the contract of inheritance again.
In principle, it is good and important to give thought at an early stage to one’s inheritance and the contract of inheritance can be a suitable instrument for regulating these kinds of issues. It is particularly due to the strong binding effect and far-reaching consequences that a contract of inheritance can have that its content should be well thought out. It is therefore advisable when preparing such a contract to obtain the advice of a lawyer experienced in the field of inheritance law.