BGH: invalidity of a gift if the giver can be easily influenced or shows a weakness of will

In cases in which the claimant names concrete indications to the effect that he may have been legally incapacitated when making a gift, an expert opinion definitely has to be obtained by the adjudicating court. The German Federal Court of Justice [Bundesgerichtshof, BGH] determined this in its ruling of 26 April 2022 – X ZR 3/20 - and thus overturned the previous decision of the Higher Regional Court [Oberlandesgericht, OLG] of Cologne of 18 December 2019 - I-25 U 14/19 - and referred the matter back to the previous instance. The BGH pointed out that, even without any legal incapacity, the state of a weakness of will or ability to be easily influenced could also justify a nullity on grounds of immorality, if this state was deliberately and purposefully exploited by the recipient of the gift. This is because the immorality can also result from the behaviour and motives of the recipient of the gift.

In the facts underlying the decision, a 90-year-old man had transferred two of his properties to his partner, who was around 53 years younger than him, and had granted her comprehensive powers of attorney while he was in hospital. He later revoked all of the declarations of intent made in favour of the defendant, citing his state of health. In addition, his partner had threatened to leave him if he did not provide his signatures.

Already in a case from the year 2017 (decision of 14 March 2017 - VI ZR 225/16), the BGH had ruled in a similar case that the failure to obtain an offered expert opinion on a serious mental illness could constitute a violation of the claimant's right to a fair hearing. In the case at issue, a total of EUR 159,000 had been transferred from the claimant's account to the defendant, which the former explained as being by falsifications by the defendant in exploitation of his illness.

Unfortunately, time and again there are cases in which age or health-related situations of emergency are deliberately exploited. In its decision, the BGH points out a way of recovering the pecuniary losses incurred as a result of such exploitation. However, persons would be in a better position if they thought carefully at an early stage about matters concerning their succession, the circle of persons they trust and which of these trusted persons should take care of them in the event of their legal incapacity, and should make the necessary decisions without being impaired by illness or old age. In all events, these measures should always include a lasting power of attorney with a living will. In this way, situations can be avoided in which persons are caught off-guard and dangerous situations can be averted, if necessary, by the agent authorised under the lasting power of attorney.

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