Unworthy of inheriting due to discontinuation of life-sustaining measures

Published 14 July 2016 by GRP Rainer LLP

According to a ruling of the Bundesgerichtshof (BGH), Germany’s Federal Court of Justice, discontinuing life-sustaining measures can render the personal responsible unworthy of inheriting in the absence of a living will (Az.: IV ZR 400/14).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: According to the rules of succession law, it is possible for an heir to lose his right to inherit under certain circumstances. Unworthiness to inherit presupposes serious misconduct, e.g. killing or attempting to kill the testator. It is immaterial whether the killing or attempted killing was done with “good intentions” in order to end the testator’s severe suffering.

The Bundesgerichtshof’s ruling makes it clear that the motive is irrelevant. According to this, a person who attempts to kill a testator who has not been legally competent for years is unworthy of inheriting. This is certainly the case if the testator did not leave behind a living will, the facts of the case do not constitute mercy killing pursuant to sec. 216 StGB (German Criminal Code), the heir did not follow the procedure set out in sec. 1901(a) et seqq. BGB (German Civil Code), and it is otherwise impossible to ascertain the actual expressed will of the testator concerning the discontinuation of life-sustaining measures. A prerequisite for the person responsible being deemed unworthy of inheriting is the capacity to be criminally responsible.

The ruling was based on a case involving spouses who had appointed each other as sole heirs and their children as final heirs in a will. The wife became gravely ill, and was fed and nourished through a tube from 2003. It became impossible to communicate with her orally. Her husband subsequently suffered from depression. In 2012, he severed the connection to his wife’s feeding tube and objected to re-establishing a connection. The nursing staff were able to repair the connection. Shortly thereafter, the wife passed away without any causal link to the husband’s actions. Her son then brought a legal action seeking to have his father declared unworthy of inheriting.

Following a series of cases before courts of lower instance that were decided differently, the BGH ruled that the father was unworthy of inheriting. It stated that his motives were immaterial and that it could neither be ascertained whether the killing was requested by the victim nor if a living will to this effect existed. Due to the fact that it has yet to be conclusively determined whether or not the husband is criminally responsible, the BGH referred the case back to the appeal court.

The case demonstrates the importance of a living will or some other form of clearly discernible will regarding the discontinuation of life-sustaining measures. Lawyers who are versed in the field of succession law can advise on all matters pertaining to wills or contract of inheritance.