It is possible even for gifts made more than ten years ago to affect the claims of the other heirs following the death of the testator. Such were the circumstances of a case ruled on by Koblenz’s higher regional court – the OLG Koblenz – on April 24, 2023 (case ref.: 12 U 602/22).
As a general rule, gifts made during the testator’s lifetime that date back more than ten years do not affect the heirs’ claims after the former has passed away. One possible exception, however, is if the gift is deemed to be an endowment, in which case it will have an effect on the heirs’ claims to supplement the statutory share of the estate even after ten years have passed, notes commercial law firm MTR Legal Rechtsanwälte.
The testator in the case heard by the OLG Koblenz left behind a son and two granddaughters, both of whom were the children of her already deceased daughter. The testator had named her son as her sole heir in a notarized will, and had gifted him a piece of real estate that encompassed a number of rental apartments and commercial premises as far back as thirteen years prior to her death, with the rental income flowing into her son’s account.
The granddaughters, who were not accounted for in the will, demanded their statutory share of the estate and sought to ensure that the property gifted to the son also be factored into this, arguing that the gift amounted to an endowment under the terms of Section 2050(1) of the German Civil Code (BGB), i.e., a benefit intended to obtain or maintain a person’s position in life.
While the court acknowledged that gifts in the form of rented properties are frequently considered to be an endowment, this was not the case here. The OLG Koblenz pointed out that the son was already 28 years old, married, and had started his own business at the time the gift was made. Moreover, the married couple collectively brought home a sizeable income that afforded them a decent standard of living, irrespective of the gift. The court therefore concluded that the gift did not constitute an endowment, despite the fact that it raised their standard of living. Accordingly, the property should not be factored into the granddaughters’ claims to the statutory share of the estate.
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