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Condition in the Last Will and Testament

The condition is a possibility to link the last will not only with donations, but also with concrete instructions. A condition can be used to control what the heir or legatee has to do or not to do after the death. The condition is therefore a legally binding order that creates clear rules. A violation of the condition solely due to one’s own fault can lead to the loss of the donation.

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Difference between Condition and Requirement

In the case of a condition, the beneficiaries only receive the donation if the condition is fulfilled. An example of a condition is: “Everyone who was at my funeral will receive one thousand euros.” The right to the legacy in the amount of one thousand euros only arises for those persons who were at the funeral.

In the case of a condition, the beneficiaries receive the donation before the condition is fulfilled. An example of a condition is: “Susi and Max each receive one thousand euros. In return, they have to visit my grave monthly for one year.” In the case of the condition, the beneficiaries receive a right to the legacy in the amount of one thousand euros regardless of whether they actually fulfill the condition later.

However, the fulfillment of the condition is mandatory. A violation of the condition solely due to one’s own fault can therefore later lead to the loss of the donation and thus to a similar result as the condition.

Difference between Condition and Request

Not every formulation in the will is automatically a binding condition. Testators often use unclear terms such as “may”, “should” or “would be nice”. In such cases, the interpretation of the text decides whether the testator wanted to express a legal obligation or only a moral recommendation.

Only if a legally binding order can be recognized, there is a real condition.

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Admissibility of Conditions

The content of the condition must be clearly determinable, legally permissible and actually fulfillable.

Impossible or illegal conditions are void, i.e. invalid from the beginning. If the condition is impossible or illegal, then the beneficiary receives the donation without having to fulfill the condition.

The condition only has to specify who should implement it. A specific beneficiary, on the other hand, is not required. For example, this condition would be conceivable: “Max was always stingy. He must therefore donate one hundred thousand euros from his inheritance to charitable institutions by the end of the year.”

The most common conditions include:

• the maintenance of the grave, a relative or a pet
• a prohibition on the sale of a property
• the granting of a right of residence or usufruct
• the obligation to donate to a charitable institution
• the obligation to finance someone’s studies

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Due Date of Conditions

The obligation arising from a condition only arises with the probate. This means: The heir or legatee does not have to fulfill the condition immediately after the death of the testator, but only when he actually receives the donation.

Standard of Fulfillment

The person obliged must implement the condition as precisely as possible. If an exact fulfillment is not possible, an approximate implementation is sufficient. In this way, the law protects the last will of the testator from unwanted destruction if certain requirements can no longer be exactly fulfilled afterwards.

However, if even an approximate fulfillment is not possible, then the condition is again void.

Legal Consequence of Non-Fulfillment of the Condition

Anyone who does not fulfill a condition through their own fault risks losing the donation. In this case, the condition acts like a dissolving condition.

This means: The heir or legatee loses the inheritance or legacy, unless a different will of the testator emerges from the last will and testament. This would be the case, for example, with this formulation: “Max gets one hundred thousand euros and has to take care of my dog. However, if he does not want to take care of the dog, he should still receive the money.”

If fulfillment is objectively impossible, the condition is waived. If it is only partially possible, partial fulfillment is sufficient, provided that it still meets the core of the order.

Persons Entitled to Sue

Not everyone may demand the enforcement of a condition in court. The following are entitled to sue:

• the financial procurator, if a public interest is affected
• an heir, provided he is not burdened himself
• an appointed executor

A beneficiary of the condition, i.e. the person who benefits from the condition, cannot sue for fulfillment. Unlike with a legacy, no direct claim arises. He is also not entitled to a right of segregation or a right of recourse against the estate inventory.

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Deadlines

The assertion of the condition is subject to the general statute of limitations. The assertion of the condition is subject to a period of three years from the point in time at which the entitled person becomes aware of the obligation and the person obliged. Regardless of this, the absolute statute of limitations of 30 years applies from the death of the testator.

Your Benefits with Legal Assistance

A faulty or unclear condition can lead to problems in the event of inheritance. This can range from legal disputes to the ineffectiveness of the entire provision. An experienced lawyer ensures that your wishes are legally valid, enforceable and appropriately formulated.

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Frequently Asked Questions – FAQ

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