The case: Sale of land without a certificate of inheritance?
A married couple had concluded a spousal inheritance contract in Germany: they appointed each other as sole heirs and stipulated that their five joint children should receive the estate of the last deceased parent. In addition, the children had waived their inheritance and compulsory portion upon the death of the first deceased parent in an inheritance and compulsory portion waiver agreement.
After the husband’s death, the surviving wife – as a “community of heirs consisting of the wife” – wanted to sell a property in Valais to the spouses’ joint son. However, the land registry rejected the entry: A certificate of inheritance was required to clearly prove the wife’s sole entitlement to inherit, as the wife’s sole status as heir was unclear.
The Federal Supreme Court issues a clear judgement
The Federal Supreme Court confirmed the land registry’s decision. The central point: the spouse’s inheritance contract and the contract waiving the inheritance and compulsory portion were open to interpretation. Although the descendants were referred to as “final heirs” – i.e. the position of the descendants as heirs after the death of the second deceased parent – other wordings in the contracts were contradictory or left room for interpretation. For example, a precautionary revocation of any other testamentary dispositions was provided for in the spouse’s inheritance contract and any amendments to the spouse’s inheritance contract were recorded in the inheritance and waiver of compulsory portion contract. As the spousal inheritance contract could therefore still have been amended up to the death of the spouse, the legal action was not clear and a certificate of inheritance was necessary.
The court clarified:
- As long as it is not clear beyond doubt who is deemed to be the heir, the land registry may demand a certificate of inheritance.
- Terms such as “final heir” are open to interpretation.
- A certificate of inheritance offers a high degree of guarantee of accuracy and is justified in the case of circumstances that require interpretation.
Why is this important?
The judgement is very important for heirs:
- Inheritance contracts that are not clearly formulated can lead to delays in the division of the estate.
- A certificate of inheritance provides clarity – even if this involves effort and costs.
- Land registry offices may consistently demand legally sound evidence in case of doubt.
Conclusion: Be careful with international spouse inheritance agreements
This case clearly shows how important clear and unambiguous wording is in inheritance agreements – especially when they relate to foreign countries. Anyone planning a will or an inheritance contract with cross-border effect should seek legal advice in accordance with the legal requirements of the country in which the inheritance takes place, avoid possible scope for interpretation and ideally conclude wills and inheritance contracts in accordance with the applicable law of the country in which the inheritance takes place.
Recommendation:
Have existing wills and inheritance contracts – especially those with international implications – legally reviewed. This will help you avoid expensive delays in the settlement of your estate.
If you need support in the area of inheritance law, our experienced lawyers will be happy to assist you.