Calculating the compulsory portion is often a matter of contention when it comes to the distribution of an estate. The Oberlandesgericht (OLG) Koblenz has ruled that the beneficiary of a compulsory portion is also obligated to provide the heir with information.
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: According to succession law, the testator is able to limit an heir’s inheritance to the statutory compulsory portion by means of a will or contract of inheritance. Calculating the extent of a compulsory portion is frequently a source of contention in the course of an estate being divided among the heirs and those entitled to the compulsory portion.
In its ruling of November 25, 2015, the OLG Koblenz held that it is not only the heir who has a duty to provide the beneficiary of a compulsory portion with information but that this also applies vice versa (Az.: 5 U 779/15). Accordingly, the heir may demand information from the party entitled to the compulsory portion concerning whether he received any gifts from the testator during the latter’s lifetime that need to be taken into account for the purposes of calculating the compulsory portion. This duty of disclosure extends to all other relevant factors, the point in time at which the gifts were made by the testator as well as any instructions he issued.
In the instant case, a son sought his compulsory portion following the death of his mother. He requested from the heir, the testatrix’s husband, his compulsory portion amounting to 25 per cent of the estate assets after settling the estate’s liabilities. The heir believed that the son had received gifts from the testatrix during her lifetime that needed to be deducted from his compulsory portion. The son claimed not to have received any gifts that needed to be taken into account for these purposes.
In contrast to the court of first instance, the OLG Koblenz took the view that this claim by the son was not enough to discharge his obligation to provide information, as the heir had stated within the scope of the dispute that specific gifts had been made and the son ought to have sufficiently explained himself in this regard. The Court held that the scope of disclosure needed to encompass all of the circumstances both in favor and against the obligation to provide information. It went on to say that all other relevant factors, the point in time at which the gifts were made and any instructions issued by the testator had to be disclosed. As such, the OLG concluded that while the duty of disclosure does not extend to all gifts, it cannot, however, be left up to the subjective assessment of the beneficiary to the compulsory portion to decide what information he deems to be relevant for the purposes of deducting from the compulsory portion.
Lawyers who are versed in the field of succession law can advise on all issues pertaining to wills, contracts of inheritance and compulsory portions.
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