If the person making the declaration was mistaken when accepting or waiving the inheritance, the declarations can be contested in accordance with Section 1955 BGB. The declaration is made to the probate court. According to Section 1956 BGB, the failure to comply with the deadline for waiver can be contested in the same way as the acceptance of the inheritance. In this respect, the general grounds for contestation apply (BGH, judgement of 29 June 2016, case no. IV ZR 387/15 with further references)
It is true that case law is quite generous in recognising errors as relevant to avoidance. Nevertheless, a challenge cannot be based on every error made by the declarant. The case law of the higher regional courts also appears to set different high requirements here. In any case, the declaration of avoidance must be prepared very carefully. You should definitely seek the advice of a specialist inheritance lawyer. Some common mistakes are described below:
Erroneous assumption by the person entitled to a compulsory portion who has been appointed as heir with complaints that he/she may not waive the inheritance in order not to lose his/her claim to the compulsory portion:
In the opinion of the BGH, an error of legal consequence that entitles the party entitled to a compulsory portion to contest the inheritance is, for example, if the person entitled to the compulsory portion who is appointed as heir with complaints erroneously assumes that he or she may not waive the inheritance in order not to lose his or her claim to the compulsory portion (BGH, judgement of 29 June 2016 - IV ZR 387/15). In the opinion of the BGH, the contestation of the acceptance of the inheritance can also be based on a mistake as to the legal consequences, i.e. on the fact that the declarant is mistaken about the legal consequences of his declaration of intent. According to this, the legal consequences error should also be a sub-category of the content error within the meaning of Section 119 (1) Alt. 1 BGB. According to established case law, such an error of law only gives rise to a right of avoidance if the legal transaction carried out produces effects that are substantially different from those intended. In contrast, the unrecognised occurrence of additional or indirect legal effects, which are additional to the intended and actual legal consequences, is no longer an error regarding the content of the declaration, but an irrelevant error of motive.
Mistake about the person of the next appointed heir in the case of „guiding waiver“
In the case of a so-called „directing waiver“, the error regarding the person of the next appointed heir should also be a significant legal consequence error as an error of content. The renunciation not only causes the renouncing party to cease to exist in accordance with Section 1953 (1) BGB, but in accordance with Section 1953 (2) BGB, the inheritance also passes to the next appointed heir. The inheritance thus passes to the next appointed person as a direct legal consequence of the waiver. The error as to who inherits the estate is therefore relevant, at least insofar as the declarant was specifically concerned with the transfer of the inheritance to a certain third party. In the opinion of the Senate, the declarant can therefore contest the waiver due to an error of content if the failure to achieve the intended purpose is due to the fact that the inheritance is received directly by a different person than intended (see OLG Frankfurt a.M., decision of 6 February 2021 - 21 W 167/20; OLG Düsseldorf, decision of 12 March 2019 - 3 Wx 166-17; aA KG Berlin, decision of 11 July 2019 - 19 W 50/19).
Mistake about the person who becomes heir after further waiver by the next appointed heir.
If the disclaiming party is not mistaken about the person to whom the inheritance is due after the disclaimer, but the mistake relates to the person who becomes the heir after a further disclaimer by the initially appointed heir, this is not a mistake that entitles the declarant to contest the inheritance. The succession that has occurred is then not a direct legal consequence of the declarant's declaration of renunciation, but an indirect consequence of the declaration of renunciation. According to case law, such an indirect legal consequence does not lead to a significant legal consequence error, but only represents an error of motive (OLG Frankfurt a.M., decision of 6 February 2021 - 21 W 167/20).
Misconception about the value of the estate objects or the estate
If the declaring party is mistaken about the value of the items in the estate, this should not constitute an error that entitles the declarant to contest the acceptance of the inheritance. The value of the estate items or the value of the estate as such are not essential characteristics within the meaning of Section 119 para. 2 BGB (Higher Regional Court of Cologne, judgement of 15 May 2017 - 2 Wx 109/17).
Mistake about the over-indebtedness of the estate
The over-indebtedness of the estate is an essential characteristic of the estate. A tangible entity such as the estate falls under the concept of a thing within the meaning of Section 119 (2) BGB. An error entitling to contest the acceptance of the inheritance (or the waiver) exists if the error regarding the over-indebtedness is based on misconceptions regarding the composition of the estate, regarding the assets and liabilities. It is questionable whether an error exists if the declarant has no concrete idea of the composition of the estate. In some cases, an error is then rejected (Staudinger/Otte, Section 1954 para. 16, BayOBLG, ZEV, 1997, 257,258). The Higher Regional Court of Cologne, for example, considered it sufficient that the declarant erroneously assumed that a settlement payment to the testator had not yet been used up (Higher Regional Court of Cologne, judgement of 15 May 2017 - 2 Wx 109/17).
Mistake about the existence of the cancellation period, its expiry or the legal consequences of its expiry.
The failure to meet the deadline can be contested on the grounds of error if the person appointed as heir did not actually want to accept the inheritance because he was unaware of its existence, its course or the legal consequences of its expiry or believed that he had already effectively renounced it. This constitutes significant grounds for avoidance within the meaning of Section 1956 BGB in the form of an error of declaration pursuant to Section 119 (1) Alt. 2 BGB (BGH, decision of 10 June 2015 - IV ZB 39/14; OLG Brandenburg, 19.10.2021 - 3 W 45/21; OLG Rostock NJW-RR 2012; 1356 BayObLG ZEV 1994, 112).
The avoidance must be declared within 6 weeks (Section 1954 BGB). In the case of avoidance on the grounds of threat, the period begins at the time at which the predicament ceases; in other cases, it begins at the time at which the person entitled to avoid becomes aware of the grounds for avoidance. The time limit is six months if the testator's last place of residence was only abroad or if the heir is abroad when the time limit begins.
Pursuant to Section 1957 of the German Civil Code (BGB), contesting the acceptance or contesting the failure to meet the deadline for waiving the inheritance is deemed to be a waiver of the inheritance.
For the then open regulation of succession, the law stipulates in Section 1953 (2) BGB that, after the heirs declaring the waiver, those heirs are appointed as heirs who would also be heirs if the waiving heirs had no longer been alive at the time of the inheritance. The succession therefore continues. In the case of intestate succession, the further succession after the waiver is based on Sections 1925 para. 3 sentence 1, 1924 para. 3 BGB. Accordingly, the children of the disclaiming party inherit (succession by lineage). For this reason, it is necessary for the children of the disclaiming party to also declare the disclaimer if they do not wish to become heirs.
In the event of a waiver by the heir designated in the will, the descendants of the waiving party also inherit in case of doubt in accordance with the interpretation rule of Section 2069 BGB. However, this does not have to be the case if a different intention of the testator can be established. Nevertheless, even in this case, the descendants of the disclaimant should always disclaim.
In accordance with Section 1956 of the German Civil Code (BGB), the contestation is made by declaration to the probate court that has jurisdiction for the probate matter in accordance with Section 343 of the German Family Proceedings Act (FamFG). As a rule, this is the court in whose district the deceased was last domiciled. Pursuant to Section 1956 sentence 2 BGB, the provisions of Section 1945 BGB apply to the declaration, i.e. the waiver must be submitted for the record of the probate court or in a publicly notarised form.
§ Section 344 (7) FamFG now expressly stipulates that a declaration of renunciation made to the probate court that does not have local jurisdiction is valid and effective within the time limit. The provision covers (see Heinemann, FamFG für Notare, para. 285) the acceptance of the waiver of inheritance (§ 1945 para. 1 BGB), the contestation of a waiver of inheritance (§ 1955 sentence 1 alt. 2 BGB) and - despite not being mentioned - also the contestation pursuant to § 2308 para. 1 BGB and the contestation of an acceptance of inheritance (§§ 1955 sentence 1 alt. 1, 1956 BGB).