Sat, Jun. 04, 2005

Heir Disinherited

CK - Washington.   Disinheriting a statutory heir is almost impossible under German law unless an heir seeks to kill or assault the testator. A recent decision, case numbers 1 BvR 1644/00 and 1 BvR 188/03, by the Supreme Constitutional Court finetunes the limits.

Generally, if a testator disinherits, or fails to bequeath anything of an estate to, a statutory heir such as a spouse or child, the statutory heir will be entitled to compensation valued at half of the statutory share. The statutory heir acquires that claim as a claim against the heirs proper--such as those named in a will--and the claim is for money, not actual assets, such as real estate, that the heirs proper inherit when the decedent dies. The Civil Code permits a testator to completely disinherit, however, an heir who forms an intent to kill or assault the testator.

In the case at bar, the testator disinherited one of two brothers who suffered from a mental condition, tried to kill the testator before he was disinherited, later killed him out of fear of being sent to a mental ward, and raised a claim for his statutory share against the brother. The court tested the limits of the Civil Code against the constitutional guarantees for the right to inherit in Articles 14(1) and 6(1).

The lower courts had found the plaintiff criminally insane and, thus, incapable of forming an intent to kill his father. The Supreme Court instructed the lower court, however, to re-examine the conditions for disinheriting an heir under §§2303(1), 2333(1) and (2) of the Civil Code also from the perspective of civil competence to form an intent and from the angle of a natural intent.

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