• Contract of Inheritance: Clear Separation Necessary between Friendship and the Provision of Care
  • August 25, 2015 | Author: Michael Rainer
  • Law Firm: GRP Rainer LLP - Munich Office
  • One’s final will can be mandated in a testamentary will or contract of inheritance. Having said that, the legislature has set limits that need to be observed if the final will is to be implemented as intended.

    GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London - www.grprainer.com/en conclude: People are frequently faced with care services in the last phase of their lives. However, according to a ruling of the Higher Regional Court of Frankfurt am Main dated May 12, 2015 (Az.: 21 W 67/14), a care provider or its employees cannot be readily appointed as heirs in a contract of inheritance or will.

    The HRC of Frankfurt declared the contract of inheritance of a single and childless testatrix void. The woman was taken care of by an outpatient care provider until her death. She developed a friendly relationship with the managing director of the care provider, with joint excursions and lunches regularly taking place. One year prior to her death, the testatrix concluded a notarised contract of inheritance with the managing director, appointing the latter as her sole heir.

    The Probate Court initially issued the managing director the certificate of inheritance, but retracted it after the Regional Government Office (Regierungspräsidium) as the supervisory authority had initiated fine proceedings against the managing director for breach of the prohibition in sec. 7 of the Hesse state law concerning care services (Hessisches Gesetz über Betreuungs- und Pflegeleistungen (HGBP)). The woman raised a legal action against this. The HRC dismissed the claim after hearing several witnesses.

    The HRC stated in its reasoning that the contract of inheritance was invalid due to an infringement of sec. 7 HGBP. It went on to say that, according to this provision, managers and employees of a care giving organisation are forbidden from allowing themselves to be promised or granted money or benefits-in-kind for care services in addition to their agreed remuneration. This is meant to prevent those dependant on care from being exploited. However, it also stated that an infringement is only constituted if the appointment of heirs is linked to the fulfilment of the care contract, and there is a statutory presumption that needs to be rebutted for this purpose. The claimant was unable to do so in this case, as it was said to be impossible to discern a clear separation between the work-related relationship and the private friendship.

    This example demonstrates that it can absolutely be necessary to obtain legal advice in cases involving a contract of inheritance or will. Lawyers who are versed in the field of inheritance law can make sure that the final will is implemented.