Edition in the will
If certain persons are named as heirs or legatees in a will, the testator sometimes expects his or her heirs to take certain actions or behave in a certain way.
The testator can control the behaviour of his heirs or legatees to a certain extent by imposing conditions.
What is an overlay?
The term "condition" is defined in § 1940 BGB. It states:
„The testator may oblige the heir or a legatee to make a payment by will without conferring a right to the payment on another person.“
The condition is to be distinguished from a legacy. In the case of a legacy, a pecuniary benefit is granted to the beneficiary and the beneficiary receives a claim against the heirs. The legatee can therefore demand that the bequeathed object be transferred to them. In contrast, a condition only grants an obligation to perform without a claim to fulfilment.
What content can the edition have?
In terms of content, the condition can be any obligation to perform; this can be of a pecuniary or non-pecuniary nature. Both an action and an omission on the part of the heir or legatee can be made a condition.
Examples:
Grave care, distribution of a sum of money for charitable purposes, obligation to continue a business, care of pets, etc.
How is compliance with the requirement monitored and what happens in the event of non-compliance?
The person who is the beneficiary of the conditions cannot sue for fulfilment of the conditions in court.
However, a condition is not completely without legal obligations. § Section 2194 BGB states the following:
„The heir, the co-heir and the person who would directly benefit from the elimination of the person initially burdened by the condition may demand the enforcement of the condition. If enforcement is in the public interest, the competent authority may also demand enforcement.“
The fulfilment of the condition can then be enforced by the co-heirs. An appointed executor can also demand fulfilment of the condition. If the fulfilment of the condition is in the public interest, an authority can also sue for compliance with the condition in court.
The public interest is affected if the execution serves a purpose that the state or another person under public law is responsible for promoting.
An example of a requirement that serves the public interest is support for the blind and visually impaired (OLG Schleswig-Holstein, judgement of 8 September 2017 - 3 U 16/17)
When is a condition ineffective?
Pursuant to Sections 2192 and 2171 of the German Civil Code, the condition is invalid if it requires the heir to provide an impossible service at the time of the inheritance. The impossibility of the required performance may exist for legal or factual reasons. The validity of the bequest to the beneficiary is not affected by the invalidity of the condition (Section 2195 BGB).