Bequest - When the object of the estate no longer belongs to the estate
The testator can bequeath individual items to an heir or a third person by means of an effective bequest order. If the testator has made such a disposition, it can usually be assumed that the testator intended to keep this object until his or her death at the time the will was drawn up. However, difficulties arise if the testator later sells the bequeathed object or it is no longer part of the estate for other reasons.
What happens if the legacy no longer exists after the death?
Pursuant to Section 2169 (1) BGB, the bequest of a specific object is invalid if the object does not form part of the estate at the time of inheritance, unless the object is also to be given to the beneficiary in the event that it does not form part of the estate. According to this provision, the effectiveness of the bequest depends on what type of bequest the testator has stipulated in his will. This must be determined by interpreting the will.
If the testator has ordered a generic legacy within the meaning of Section 2155 BGB, the legacy order remains effective in accordance with Section 2169 (1) 2nd half of the BGB. A generic bequest is understood to mean that the testator has specified the object of the bequest in accordance with Section 2155 (1) BGB only in terms of its genus. If the testator has stipulated such a generic bequest in his or her will, the legatee's entitlement to the transfer of the object of the estate continues to exist.
For example, if the testator stipulates that his grandchild should receive ten gold coins as a legacy, this entitlement also exists if the testator was the owner of these gold coins at the time the will was drawn up, but these gold coins were no longer available at the time of inheritance. The situation is very similar with a monetary legacy. If, for example, the testator has stipulated that his partner is to receive 100,000 euros from the heirs, this entitlement exists even if the account balances were lower at the time of inheritance or even if there were no balances at all.
The situation is different if the testator has ordered an individual bequest. This is the case if the testator bequeaths a specific item from their estate.
Examples: Vintage car, watch, jewellery etc.
If a partial legacy no longer exists at the time of inheritance, the legacy is invalid pursuant to Section 2169 (1).
As the legatee, do I have any claims if the legacy object no longer exists?
Whether the legatee has any claims for compensation must be determined by interpreting the bequest order. In the event that the testator himself was not yet the owner of the bequest object, but had a claim to it, it must be assumed in case of doubt in accordance with Section 2169 (3) BGB that this claim has been transferred to the legatee. For example, if the testator ordered a new car before his death, which was not delivered by the time of his death, the claim to this car is transferred to the legatee. Even if the object of the bequest has been lost and the testator has therefore acquired a claim for compensation, this claim for compensation shall, in case of doubt, pass to the legatee to whom the testator had bequeathed the lost object of the bequest.