Higher Regional Court Frankfurt – Az .: 20 W 453/10 – decision of February 10, 2011
The complaint is rejected.
The applicant has to bear the costs of the complaint procedure.
Complaint value: € 62,000.
reasons
I.
The applicant applied for a certificate of inheritance for herself and her two siblings in a notarized certificate of inheritance dated 06/22/2010, citing the notarial joint will of her parents dated 08/18/1983, which she and her two siblings each have a third after their on –.–. Identifies father who died in 2010. The testator died on –.– 2010, his wife on –.–. 1993.
With regard to the compulsory portion clause contained in the joint will, the senior judicial officer advised the applicant that the application for a certificate of inheritance did not state that none of the heirs had claimed compulsory portion claims after the death of the spouse who died first. In this respect, the Rechtspfleger has requested an application supplement with a corresponding affidavit.
The applicant or the notarizing notary refused to do so. The penalty clause for a descendant who asserted claims to a compulsory portion was a condition subsequent, which resulted in disinheritance of the inheritance and the arrangement of legal succession. Since the affidavit expressly states that the insured is not aware of any circumstances that would conflict with the correctness of their information, it is also expressly assured that the succession does not lapse with regard to an inheritance portion either and that the legal succession has replaced this. It is alien to civil law – unless there is an express legal order – to prove negative facts.
After another exchange of correspondence and a judicial ruling dated 09/16/2010 that the interim ruling of the senior judicial officer was not independently contestable, the senior judicial officer rejected the application for a certificate of inheritance on 04/10/2010.
In contrast, the notary filed a complaint on behalf of the applicant with a pleading submitted on October 22, 2010. The applicant complains that the supplement to the affidavit was wrongly requested. The idea that the applicant could have overlooked the resolving condition is far removed from any life experience. The subsequent condition was the only reason that the right of inheritance of the applicant and the ex[…]
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