Reversal of the renunciation of the inheritance
It is not unusual for an inheritance to be associated with financial benefits for the heirs. Instead, in some cases it is advisable to disclaim the inheritance in accordance with Section 1942 of the German Civil Code. Under certain circumstances, however, the disclaimer may be made far too hastily and it may later turn out that the heir was mistaken at the time of the disclaimer. It is common for heirs to effectively disclaim the inheritance within the statutory time limit, only to possibly discover later that this decision was rash.
If the heir who rejected the inheritance later becomes aware of assets that were part of the estate from the beginning, 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 whether and under what circumstances the inheritance can be disclaimed.
Can I reverse the disclaimer?
The law offers the disclaiming heir the possibility of eliminating the legal effect of the disclaimer under certain circumstances.
What are the requirements for contesting the disclaimer?
1. Grounds for disallowance
The possibility of contestation exists only if one of the grounds for contestation pursuant to the provisions in Sections 119 and 123 of the German Civil Code (BGB) is given.
a. Error of Character
In practice, the ground for contestation under Section 119 (2) of the German Civil Code is of particular importance. This states that an already declared disclaimer of the inheritance may be effectively contested if the heir who declared the disclaimer was mistaken at the time of his declaration with regard to material aspects of the estate.
However, this error may not concern the heir's general belief that the estate is overindebted. Such a general misconception, known as a "motive error," is generally not recognized by the courts and is therefore irrelevant. Rather, the misconception 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.
- Size of the co-heir's share
- Appointment of a co-heir or a subsequent heir
- Restrictions and burdens on the heir due to 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 inaccurate idea, without knowing the exact composition of the estate, cannot challenge the decision. This means that a person who based his decision to accept or disclaim the inheritance on speculative (deliberately uncertain) assumptions cannot invoke a ground for contestation.
b. Error of content
Pursuant to Section 119 (1) 1st variant of the Civil Code, the heir may contest the disclaimer if he was mistaken about the content of the disclaimer when he made it. In this case, although the declaration is outwardly in accordance with the heir's will, the heir is mistaken as to the meaning and scope of his declaration. However, it is often difficult to draw a clear line between a significant error of legal consequence and an insignificant error of motive. Thus, a considerable error of legal consequence is given if the heir is mistaken about the legal consequences of a disclaimer that has already been made and intended.
In contrast, an irrelevant error of motive is given if the declaring party did not know or did not recognize that, in addition to the intended legal effects, additional or indirect legal consequences could occur.
In its decision of 22.03.2023 the Federal Court of Justice decided that such an irrelevant error of motive is given if the person disclaiming an inheritance is mistaken about the person entering the succession in his place when making his declaration (ref.: IV ZB 12/22).
c. Further grounds for contestation
Another ground for rescission is fraudulent misrepresentation or threat pursuant to § 123 BGB. Such a ground exists if the heir was induced to renounce the inheritance by fraudulent deception or unlawful threat. In addition, under Section 119 (1) 2nd variant of the German Civil Code, the heir has the option of contesting the disclaimer on the grounds of an error in declaration. Typical cases of an error in declaration are prescriptions or promises. However, this is hardly possible in practice, as the challenge must be recorded by the probate court or publicly certified.
2. disclaimer period and form
Pursuant to Section 1954 (1) of the German Civil Code (BGB), the contestation of the disclaimer can only be contested within six weeks. § Section 1954(2) of the Civil Code states that in the case of contestability on the grounds of threat, the period begins at the time when the coercion ceases; in other cases, it begins at the time when the person entitled to contest becomes aware of the grounds for contestation.
If the testator's last residence in the domicile was exclusively abroad or if the heir is abroad when the period begins, the period is six months.
However, the contestation is excluded pursuant to Section 1954 (4) of the German Civil Code if 30 years have elapsed since the acceptance or disclaimer.
How is the contestation to be declared?
Pursuant to Section 1955 Sentence 1 of the German Civil Code, the contestation of the disclaimer must be made by declaration to the probate court. The contestation must be recorded before the probate court or sent to it in a publicly certified form. The consequence of an effective contestation is that the disclaimer is null and void pursuant to Section 142 (1) of the German Civil Code. In addition, Section 1957 of the German Civil Code provides that a challenge to the acceptance shall be deemed to be a disclaimer of the inheritance and vice versa, and a challenge to the disclaimer shall be deemed to be an acceptance of the inheritance.