OLG Hamm, decision from 16/08/2018 - 15 W 256/18

Central standard: § 2151 BGB

(Effectiveness of a „super legacy“)

For the reasons:

1 Neither the reasons stated in the interim orders of 23 April 2018 and 16 May 2018 and in the order of 21 June 2018 by the land registrar nor any other reasons stand in the way of the requested entries.

2 Insofar as Mr C is still registered as owner/co-owner of the properties concerned in place of the parties 1) and 2), this does not prevent the requested entries, as the parties 1) and 2) are heirs of the registered owner/co-owner (§ 40 Para. 1 GBO). The status as heirs of the parties 1) and 2) results from the notarised will of the testator dated 20 October 2015 (deed no. ...2015 of the notary Dr. T in I) and the minutes of the opening of this testamentary disposition (AG Hagen 7 IV 955/15).

3 Contrary to the legal opinion of the land registrar, the heirs are also not restricted in their power of disposal over the properties by the execution of the will ordered by the testator, as the properties concerned are not subject to the administration of the executor of the will if the notarised will is interpreted reasonably.

4 It is true that the execution of the will ordered for a legatee can also relate to the administration of a property and then require the entry of an executor's note in accordance with § 52 GBO (BayObLG Rechtspfleger 1990, 365; Demharter, GBO, 30th edition, § 52 marginal number 5). For the case to be assessed here, however, it can be ruled out that it was the will of the testator that the properties concerned here should be administered by the executor of the will. The testator left it to his heirs, the parties 1) and 2), to decide which objects should be used to fulfil the legacy (§ 2151 BGB). The decision of the parties 1) and 2) to sell the three properties concerned here can therefore easily be seen as a decision that these three properties are not to be used to fulfil the legacy and are therefore from the outset not subject to the administration of the executor of the will, who is to administer the legacy exclusively.

5 Due to the success of the appeal, there is no need for a decision on costs, a decision on the value of the case or a decision on the admissibility of the appeal on points of law.