CHAPTER VI The Law of Succession

Author:E. J. Cohn
Profession:Sir
Pages:182
 
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SECTION I - TERMINOLOGY AND GENERAL PRINCIPLES

  1. The German law of succession, both testate and intestate, is treated at great length in the fifth book of the Civil Code, which at one time was considered to be technically the best part of the Code. This view is largely abandoned today. Many rules contained in this part are obsolete as they

    deal with contingencies which rarely, if ever, arise and introduce rules of interpretation for clauses in wills, which are today no longer usual. The general decline of the wealth of the German population has led to a decrease in the importance of this part of the law as compared to the time when it was introduced. For this reason the following summary is more strictly confined to the principles of the law than the preceding parts of this work. On the other hand-as in other countries-succession duty plays an important part in Germany. The law relating to this duty has been amended by CCG Law No. 17.

  2. The German law on intestate succession contains a number of rules inherited from Germanic law, but very much fewer than does English law.

    The bulk of this part of German law is due to Roman influence. For this reason many of the main principles of German law deviate most strongly from those rules of law to which English lawyers are accustomed.

  3. Perhaps the most important principle of German law is the principle of ' Universalsukzession '. This principle, which is unknown to English law, means that on the death of a person, his or her entire property passes immediately and automatically to his or her heirs. The death of a person is in this connection referred to as the ' Erbfall '. No distinction is made between movable and immovable property: on the death of the deceased person both types of property are automatically and without any interval in time or any further outward action of any kind vested in the heirs, whoever they may be, no matter whether they are known or whether it is necessary to take steps to ascertain their identity. Such persons are the owners of the deceased persons property, even though they do not know of the Erbfall or of the property and its whereabouts. The consequence is that by the death of a person the contents of the land register, in which the deceased person still appears as the owner of the land registered in his or her name, become inaccurate. They require an adjustment to the effect that in the place of the registered owner his heirs are now owners. The heirs obtain the adjustment upon production of proof that they have succeeded to the estate of the deceased person. This is as a rule done by obtaining from the Amtsgericht a certificate, called the ' Erbschein ' (certificate of inheritance) which to a certain extent fulfils the same functions in German law as letters of administration in English law, though its legal character is different. Under German law possession, too, passes-by a legal fiction-over to the heirs at the time of the Erbfall (see section 857 BGB). This applies even though the latter do not know of either the death or the fact that they are succeeding to the estate.

  4. It follows that there is in German law no interval between the death of the deceased and the succession to the title by his successors. The space which in Roman law had to be filled by the well-known conception of the hereditas jacens, is therefore non-existent in German law and the many theories concerning the nature of such an inheritance, developed in Roman law and in some of the contemporary systems based upon Roman law, have no place in modern German law.

  5. All rights and all liabilities pass over at the same time to the heirs. The heir is a successor to both, the assets and the debts of the deceased person.

    This, too, is included in the conception of the ' Universalsukzession '. It follows that there is no room for the institution of trustees, executors and administrators of an estate in the sense of English law. German law recognises, however, that a person, other than the heir, may be entitled or bound to administer an estate. Such a person is called a ' Testamentsvollstrecker '.

    His legal position differs from that of an executor or administrator 63844 O

    under English law, in that neither rights nor liabilities pass over to him. The latter remain vested in the heirs. The ' Testamentsvollstrecker ' is merely a person entitled to act for and on behalf of the heirs, to dispose of the estate within the limits set by the law and the will, by which he has been.appointed, and to exercise those other powers granted to him by the will. He has powers and duties, but not rights or liabilities. In certain cases administrators (Nachlassverwalter) may also be appointed by the court, but these administrators too, are merely exercising powers and not rights legally vested in them.

  6. Those persons to whom the title to the estate or to part of it immediately and automatically passes over on the death of the testator are called ' Erben ' (heirs). No estate can be without an Erbe. If no Erbe has been appointed by a will, intestate succession takes place. If there are no relatives, the Land inherits by way of intestate succession. Even the most distant relatives may inherit ab intestato.

  7. Persons who have not been granted the right to an immediate share in the estate of the testator, but who are entitled to demand from the heir the delivery of specified movable or immovable property or the payment of a sum of money are called ' Vermichtnisnehmer ' (legatees). They may be granted the right to claim specified items of property (e.g. the horse in the stable, the ' Encyclopedia Britannica,' from the testator's library). The heirs on the other hand can only be granted a right to either the entire estate of the deceased or to a fraction of it, but never to a specified item forming part of the estate (so-called ' heres ex re certa '). Under German law-unlike Roman law-it is impossible for any person to acquire directly on the death of a testator ownership in any item or specified items of the testator's estate.

    A person may receive either ownership of the entire estate or ownership of a fraction of the undivided estate: in this case he is an heir. Or a person may be entitled to demand from the heir or heirs the delivery of specified items from the estate, in which case he is a legatee. The legatee has merely an ' Anspruch ' (see para. 119 (a) (cc) above), which is directed against the heir or heirs.

  8. If there is no will, certain persons succeed as statutory heirs (' gesetzliche Erben '). The persons so succeeding are the relatives of the deceased, his spouse and, in default of others, the Land. German law makes provision for certain near relatives of the testator even in those cases in which the testator has left a will, but without providing for these relatives. Such relatives, who have been passed over by the testator may be entitled to claim from the heirs, an amount of money fixed by law. This is called the compulsory portion (Pflichtteilsrecht). The function of this branch of German law is similar to, but much more comprehensive and farreaching than, that of the English Inheritance (Family Provision) Act, 1937.

  9. German law permits the making of dispositions mortis causa not only by will (Testament), i.e. by a unilateral and revocable declaration on the part of the testator, but also by an agreement made between the testator and a third party (Erbvertrag). Many of the provisions in the Civil Code refer to both Testamenten and Erbvertrigen. In the following sketch the word 'will' will be used for the sake of brevity. It should, however, be understood that what is stated here of a will, is in most cases true of Erbvertrige as well-though in practice the latter are not too frequent.

  10. German law provides that the testator may impose upon both, heirs and legatees certain burdens without at the same time giving those persons who are favoured by the burdens thus created a right which they could enforce against the persons who have been thus burdened. Such burdens

    (Auflagen) are usually created in favour of a large circle of vaguely defined persons (e.g. where scholarships have been created) or even in favour of the public (opening of a park or a picture gallery to the public). The testator will in such cases frequently appoint an executor in his will to carry out the ' Auflage '. The Code provides, however, also certain other ways and means by which the Auflage may be enforced (e.g. an administrative authority may be entitled to bring an action, if the Auflage is in the public interest.) SECTION II - INTESTATE SUCCESSION

  11. For the purpose of intestate succession the relatives of the deceased are divided into groups which are called ' Parentelen ' and which are referred to as 'Ordnungen' by tie Civil Code. The German system of Parentelen is similar to the Aasenschapssystem of Roman-Dutch law, which is familiar to South-African lawyers. The first Parentel consists of the descendants of the testator, the second of his parents and their descendants, the third of his grandparents and their descendants, the fourth of the great-grand parents and their descendants and so forth. There is no end to the system of Parentelen and, if necessary, extensive search for relatives may be required.

    Unlike the English Administration of Estates Act 1925 there is no limitation of succession to the near relatives of the deceased, a rule which is widely disapproved by German lawyers. As long as one relative of a nearer Parentel is living at the death of the testator he excludes all the relatives of the next Parentel, section 1929 BGB. A diagram of the order of Parentelen will be found on p. 187 of this summary.

  12. Among the members of each Parentel those nearest in degree take priority over those further removed, with the proviso, however, that in the first class any predeceased heir and in the second and third class any...

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