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Recording corrections in the German land register – Implications of the Dieterle clause

The ‘Dieterle clause’ is primarily used for the last will and testament of divorced persons. In doing so, a testator can ensure that a divorced spouse would not be able to indirectly possess and enjoy the testator’s assets in the event that a (joint) child post deceases the testator. This clause can however also be applied as a safeguard to other inheritance constellations.

The purpose of the Dieterle clause is to safeguard the inherited prior interest and the inherited remainder interest, although the aim is generally to exclude specific persons. Here, the child is appointed as the sole preliminary heir and the people who are designated as subsequent heirs are those who the child themself will appoint as their own legal heirs. In a case that was decided on by the Court of Appeal (Kammergericht, KG) in Berlin, in its ruling of 26.8.2022 (case reference: 1 W 262/22), a testator, who passed away in 2021, had already specified in 2016, via a notarial agreement, that her grandson, who was four years old at the time, would be her exempt preliminary heir. The subsequent heirs after his death were supposed to be the grandson’s own (any desired) legal heirs, or alternatively the testator’s daughter. When the testator’s will was ultimately opened, a co-heir requested that a correction should be made in the land register because, in his opinion, the will had contravened the rules on subsequent inheritance. Thereupon the Land Registry asked for a certificate of inheritance to be provided. 

However, the KG lifted the Land Registry’s interim injunction. While the Land Registry has to check whether or not the stated claim to the inheritance exists at all, however, the requirement for an own interpretation does not apply if the actual circumstances have yet to be determined. Such investigations as to whether or not the order of succession of the subsequent heirs is correct is not required when the Dieterle clause is used. The KG also argued that, according to Section 2065(2) of the German Civil Code, what generally matters when making testamentary disposition arrangements is that the beneficiary and the object of the benefit should be stated so specifically that it is possible for a third party to objectively identify these persons or objects. Against this backdrop, it is still disputed whether or not it would be allowed to designate subsequent heirs conditionally such that the preliminary heir would have to first appoint them as their legal heirs. However, according to the tax court, in the last will and testament, the testator does not need to specifically designate the beneficiary if it is possible to determine who this is from the circumstances outside of the document. 

Outcome: By using the Dieterle clause it is possible to take precisely these circumstances into account. The subsequent heirs will either be persons designated by the preliminary heir as their own heirs, or alternatively the daughter who was specifically designated by the testator. Therefore in the absence of any grounds for refusing registration, the correction had to be made in the land register.

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