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Prohibition of entering a property as immoral conditions in a will

A will is a common and important instrument for specifying a person's wishes regarding the distribution of his or her property after death. In this context, the testator has various options for transferring his or her assets in the event of inheritance. By law, the heir acquires ownership of the deceased's estate, while the legatee acquires a right of claim against the person to whom the bequest is made.

In addition to inheritance law and bequests, there is also the third form of bequest to a third party after the deceased's death. While the condition on the one hand does not grant the third party any right of claim of his or her own and thus grants the weakest position in comparison to the will and legacy, on the other hand it gives considerable freedom in the design and formulation. However, the design has limits if the condition is immoral. An example of an immoral condition in a will would be a condition that the heir should marry a certain person or be married by a certain date in order to receive the inheritance.

The Regional Court of Bochum also had to rule on the issue of the immorality of a condition in its judgment of 4 June 2021 - 8 O 486/205. The ruling was based on the following facts: The plaintiffs are the heirs of the deceased, who died in 2019, in equal shares. The first plaintiff occupied the flat on the first floor. In the notarial will of 1.6.2017, the testatrix formulated the following condition under clause III: "The heirs shall ensure that Mr L. is permanently prohibited from entering the properties [...]".

In the opinion of the court, this condition was immoral: according to sections 1940, 2192, 2171, 138 (analogously) of the German Civil Code (Bürgerliche Gesetzbuch), a condition is void if it is contrary to morality. This can be assumed in cases in which the testator, through his or her disposition, exerts an unacceptable pressure on the freedom of decision or other rights of the beneficiary, taking into account the highly personal and also economic circumstances. The testator's scope for imposing conditions is very large. Measured against objective criteria, they may be senseless or even nonsensical without this alone leading to ineffectiveness. In principle, the testator can create conditions up to the limit of immorality. The testator must be able to shape the succession according to his or her own ideas by way of the freedom to make a will, which is protected under Article 14 para 1 sentence 1 of the Basic Law (Grundgesetz), so that an immorality of a condition or requirement can only be assumed in particularly serious exceptional cases. 

Such a serious exceptional case is to be assumed here. According to the undisputed submission of the plaintiffs, the relationship of the first plaintiff to Mr. L. was unacceptable to the testatrix in her opinion of custom and decency, also because it was an extramarital relationship. The testamentary prohibition of Mr. L.'s access restricts the plaintiffs and in particular the first plaintiff to an unacceptable extent in their private and highly personal lifestyle. The condition also does not pursue the legitimate purpose of wanting to preserve the family's real estate for the family and to protect it from the access of third parties, in particular from the access by Mr. L. It is already questionable how the plaintiffs and in particular the first plaintiff can be protected from the access of third parties. It is already questionable to what extent this goal can be sensibly achieved with a ban on entering the property.

The result of the condition at issue is therefore merely to make the relationship of the first plaintiff to Mr. L. more difficult, if not to prevent it altogether, by preventing the plaintiffs from granting him access to their properties. The testatrix therefore merely attempted, by threatening the loss of benefits initially granted, in a manner contrary to the "sense of decency of all fair and just thinkers", to compel certain behaviour on the part of the plaintiffs, namely to prevent the relationship of the first plaintiff and Mr. L., which in her view was not in keeping with their status.

This judgement is to be welcomed and sharpens the view for the limits of the conditions often found in wills.


Nicole Wolf-Thomann

Nicole Wolf-Thomann


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