An inheritance is often associated with financial benefits for the heirs. In fact, in some cases it is advisable to disclaim the inheritance in accordance with §§ 1942 BGB. However, the waiver may be made far too hastily and it later transpires that the heir was mistaken at the time of the waiver. It often happens that heirs effectively disclaim the inheritance within the statutory period, only to realise later that this decision was a hasty one.
If the heir who has rejected the inheritance later becomes aware of assets that were part of the estate from the outset, he or she often looks for ways to reverse the rejection that has already taken place and still gain access to the newly discovered assets. In this case, the question arises as to whether and under what circumstances the inheritance can be disclaimed.
Can I cancel the renunciation?
The law offers the waiving heir the option of cancelling the legal effect of the waiver under certain circumstances.
What are the requirements for contesting the renunciation?
1. reasons for cancellation
The possibility of avoidance only exists if one of the grounds for avoidance in accordance with the provisions of Sections 119 and 123 of the German Civil Code (BGB) applies.
a. Property error
In practice, the ground for contestation pursuant to Section 119 (2) BGB is of particular importance. This states that a waiver of inheritance that has already been declared can be effectively contested if the heir who declared the waiver was mistaken about material aspects of the estate at the time of the declaration.
However, this error must not affect the heir's general assumption that the estate is overindebted. Such a general misconception, known as a „motive error“, is generally not recognised by the courts and is therefore irrelevant. Rather, the error must relate to specific assets or liabilities. This could include the heir mistakenly believing that certain assets are not part of the estate or that certain estate liabilities exist and reduce the value of the estate.
Examples:
- Size of the co-heir's share
- Appointment of a co-heir or subsequent heir
- Limitation and encumbrance of the heir through execution of the will. This also applies to the existence of conditions or legacies.
A person who has incorrectly estimated the size of the estate on the basis of an imprecise idea without knowing the exact composition of the estate cannot contest it. This means that a person who has based their decision to accept or waive the inheritance on speculative (deliberately uncertain) assumptions cannot invoke a ground for avoidance.
b. Content error
Pursuant to Section 119 (1) 1st variant BGB, the heir can contest the waiver if he was mistaken about its content when making the declaration of contestation. In this case, the declaration may outwardly correspond to the will of the heir, but the heir is mistaken as to the meaning and scope of his or her declaration. However, it is often difficult to draw a clear distinction between a significant error of legal consequences and an insignificant error of motive. For example, a significant error of legal consequence exists if the heir is mistaken about the legal consequences of an already made and intended renunciation.
On the other hand, an irrelevant error of motive exists if the person making the declaration did not know or did not realise that additional or indirect legal consequences could arise in addition to the intended legal effects.
In its decision of 22 March 2023, the Federal Court of Justice ruled that such an irrelevant error of motive exists if the person waiving an inheritance is mistaken about the person taking his place in the succession when making his declaration (docket no.: IV ZB 12/22).
c. Further grounds for contestation
Another reason for contestation is fraudulent misrepresentation or threat in accordance with Section 123 BGB. Such a reason exists if the heir was induced to disclaim the inheritance by fraudulent misrepresentation or unlawful threat. In addition, the heir has the option of contesting the waiver due to an error in declaration in accordance with Section 119 (1) 2nd variant BGB. Typical cases of a mistake in declaration are a prescription or promise. However, this is hardly possible in practice, as the challenge must be recorded by the probate court or publicly notarised.
2. deadline and form of cancellation
Pursuant to Section 1954 (1) BGB, the contestation of the waiver can only be contested within six weeks. § Section 1954 (2) BGB states that, in the case of avoidance on the grounds of threat, the period begins at the point in time at which the coercive situation ceases; in other cases, it begins at the point in time at which the person entitled to avoid becomes aware of the grounds for avoidance.
If the deceased's last place of residence was exclusively abroad or if the heir is abroad at the beginning of the period, the period is six months.
However, contestation is excluded in accordance with Section 1954 (4) BGB if 30 years have elapsed since the acceptance or waiver.
How is the contestation to be explained?
Pursuant to Section 1955 sentence 1 BGB, the contestation of the waiver must be made by declaration to the probate court. The challenge must be recorded before the probate court or sent to it in a notarised form. The consequence of an effective challenge is that the waiver is null and void in accordance with Section 142 (1) BGB. In addition, Section 1957 BGB stipulates that the contestation of the acceptance is deemed to be the waiver of the inheritance and vice versa, and the contestation of the waiver is deemed to be the acceptance of the inheritance.