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OLG Köln: Only serious misconduct justifies withdrawal from contract of inheritance

November 2017

Apart from a will, it is also possible to prepare a contract of inheritance as a way of organizing one’s estate. It should be noted, however, that a contract of inheritance has a significantly stronger binding effect.

In the absence of a will or contract of inheritance, the rules of intestate succession apply automatically following the death of the testator. If these run contrary to the testator’s wishes, a testamentary disposition ought to be drafted. In doing so, one needs to carefully weigh up whether a will or contract of inheritance is the most appropriate form. A will provides the testator with greater freedom when it comes to drawing up the agreement, whereas a contract of inheritance binds both parties to the contract. Having said that, a contract of inheritance cannot be subsequently altered or rescinded. If no appropriate provisions are set out in the contract of inheritance, we at the commercial law firm GRP Rainer Rechtsanwälte note that withdrawal is only possible if misconduct on the part of the other contractual party that would justify divestment of the compulsory portion can be proven.

In its judgment of July 3, 2017, the Oberlandesgericht (OLG) Köln [Higher Regional Court of Cologne] ruled that a testator had not effectively withdrawn from the contract of inheritance with his wife (Az.: 2 Wx 147/17). The married couple had concluded a notarized contract of inheritance 53 years prior to the death of the husband in which they had designated each other as sole heirs. Several months before his death, the husband announced his withdrawal from the contract of inheritance and appointed his children as heirs. A dispute emerged between the wife and the children concerning who had become the heir(s). The OLG Köln held that the wife had become the sole heir.

The parties had not agreed to a reservation of the right to withdraw in the contract of inheritance, which meant that withdrawal was only possible if the relevant contractual partner had been guilty of serious misconduct. The Court clarified that this misconduct needed to be sufficiently serious that it would have justified divestment of the compulsory portion. This would only be the case if the legal heir was guilty of committing a crime or wilfully committing a serious offence against the testator. In the case in question, while the wife had withdrawn around 19,000 euros from the testator’s account and set up a monthly standing order to her benefit in the amount of 2,000 euros, the OLG concluded that this alone did not amount to an offence involving property.

Lawyers who are experienced in the field of succession law can advise on all issues pertaining to wills and contracts of inheritance.

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