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Legal order of succession despite testament – challenging the passing over of a person entitled to a compulsory portion

If the testator does not draw up a testament, the legal order of succession takes effect, which means that the estate is passed onto the relations, primarily the offspring and where appropriate to the spouses. However, in many cases, testators will have a considerable interest in deviating from the legal order of succession and distributing their estates in a manner they determine themselves. Besides this, in many cases, the intention is to organize other aspects besides the distribution of assets, for instance, arranging for the execution of a will to protect underage or disabled offspring. A testament must be drawn up for all of these cases. But even when drawing up a testament there are conceivable cases in which the legal order of succession nevertheless takes effect and structuring wishes that the testator generally gave careful consideration come to nothing.

This is dramatically illustrated by the current ruling by the Higher Regional Court of Stuttgart on 14 May 2018 (8 W 340/16). Prior to his death, the testator had appointed his five children from previous marriages as his heirs. When he died in December 2015, his wife at the time was pregnant. The child was born in June 2016. The wife challenged the testament on behalf of her child with the argument that the testator had ignored her child’s right to a compulsory portion. This ruling is remarkable in two respects. Firstly, Section 2079 clause 2 of Germany’s Civil Code provides that a challenge is not possible if it is reasonable to assume that the testator would have made the deposition even if he/she had known the circumstances providing grounds for the challenge. This point was a matter of heated disagreement for the parties involved. The Higher Regional Court considered the challenge to be valid although the testator knew of the pregnancy! This shows how important it is to get the wording of testaments absolutely correct in order to avoid such interpretation issues. Secondly, the Higher Regional Court has confirmed the contentious notion in case law and legal literature that the challenge consequently renders the entire testament null and void instead of leading to the fictitious inclusion in the testament of the ignored person entitled to a compulsory portion. Under some circumstances, the challenge can therefore also render important accompanying arrangements (such as the execution of the above will) invalid.

Conclusion: If another person becomes entitled to a compulsory portion after the testator draws up the testament, be it through the birth of a child or through a marriage by the testator, or if the testator becomes aware of a person entitled to a compulsory portion that he/she was not aware of when he/she drew up the testament, the testator should seek advice from a notary public in order to appreciate the structuring options with regard to the distribution of his/her assets in the event of his/her death, that correspond to his/her “last will”, and to prevent a reversion to the legal order of succession.


Dr. Herbert Buschkühle is an attorney-at-law/tax advisor/notary public/ specialist attorney for tax law/specialist attorney for inheritance law at PKF WMS Dr. Buschkühle PartG mbB Rechtsanwälte Steuerberater, co-operation partner of PKF WMS Bruns-Coppenrath & Partner mbB Wirtschaftsprüfungsgesellschaft Steuerberater Rechtsanwälte (member company of the PKF network).

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