GER: Notary’s Liability in Compulsory-Portion Waiver

Jan 17, 2025 Benn-Ibler Rechtsanwälte

In the case at hand, the waiver of a compulsory inheritance portion was not concluded by the testator in person, but instead by a representative who did not have a power of attorney. The German Federal Court of Justice (Bundesgerichtshof, hereinafter BGH) has now confirmed the liability of the notary who notarised the deed.

In the case at hand, a farmer had made a will naming one of his two daughters as sole heir to the farm and all his property. In a notarised contract named ‘Compulsory Portion Waiver Contract’, his other daughter waived her right to her compulsory portion and declared herself satisfied in respect of the farm. At the same time, the sister who was to inherit undertook to pay compensation to her sister. The testator was not present at the signing, but was represented by an employee from the notary’s office, without power of attorney. The testator gave his consent to this at a later date. After their father’s death, the one sister claimed her compulsory portion from the sole heir to the farm on the grounds that her waiver of the compulsory portion was invalid. The sister who was to inherit considered that the mistake had been made by the notary and brought an action for a declaration that the notary was liable to pay damages.

The BGH has now confirmed the notary’s liability for the following reasons:

The defendant notary had made a negligent certification error by notarising a waiver of a compulsory portion contrary to Section 2347 BGB (Bürgerliches Gesetzbuch, German Civil Code) with the testator not present. It is not legally possible for the testator to authorise the representative’s declaration without power of attorney, nor may the testator accept the waiver subsequently.

The plaintiff’s sister has also suffered damage caused by the defendant notary’s failure to comply with his official duties, for which the plaintiff cannot obtain compensation elsewhere.

The plaintiff does not have a claim for inheritance against her sister for the conclusion of a contract of renunciation of the compulsory portion, which could provide the plaintiff with the same financial situation as that intended by the notarisation. Only during the testator’s lifetime can a waiver of the compulsory portion be concluded.

BGH, 20 November 2024 - IV ZR 263/23