Bequest - When the item no longer belongs to the estate

By means of an effective bequest arrangement, the testator can bequeath individual items to an heir or a third person. If the testator has made such a disposition, it can usually be assumed that the testator intends to keep this item until his or her death. Difficulties arise, however, if the testator intends to sell or otherwise dispose of a bequest item.


What applies if the bequest no longer exists after the occurrence of the testator's death?

In practice, it is not uncommon for legacies to give rise to the problem that the bequeathed object is no longer present or can no longer be found.

This can be due, among other things, to the fact that the testator sold or gave away the bequeathed object during his or her lifetime without amending or revoking the corresponding disposition in the will.

Pursuant to Section 2169 (1) of the German Civil Code, the bequest of a specific object is invalid if the object does not belong to the estate at the time of the testator's death, unless the object is also to be bequeathed to the beneficiary in the event that it does not belong to the estate. According to this provision, the effectiveness of the bequest depends on what type of bequest the testator has ordered in his will. This must be determined by interpreting the will.

If the testator has ordered a generic bequest within the meaning of section 2155 of the Civil Code, the bequest order remains effective in accordance with section 2169(1) 2nd sentence of the Civil Code. A generic bequest is understood to mean that the testator has designated the bequest object in accordance with section 2155(1) of the Civil Code only in terms of its generic nature. If the testator has stipulated such a generic bequest in his will, the claim to an object of the genus continues to exist.

The situation is different if the testator has stipulated a piecemeal legacy. This is the case when the testator bequeaths a very specific object from his or her estate.

Examples: Vintage car, watch, jewelry, etc.

If a piecemeal bequest no longer exists at the time of the inheritance, the bequest is invalid under section 2169(1).


Do I have any claims as legatee?

Whether the legatee has any claims for compensation must be determined by interpreting the bequest order. If the testator has granted the legatee claims to compensation in the will, the legatee is entitled to compensation in accordance with section 2169(3) of the German Civil Code.

This conclusion was also reached by the Higher Regional Court of Koblenz in its decision of 26.11.2020 (ref.: 12 U 140/20). The case concerned the sale of a VW Polo during the testator's lifetime after he had bequeathed it to a third party in his will. In the absence of any indications in the bequest order, any claims for compensation or proceeds were denied (para. 11 et seq.).