Judgment: The home as a private long-term care insurance

BGH clarifies the question of a donation to the potentially caring daughter
It is a common private generation contract: Against the promise of lifelong care one of the children gets the parental home. Here it depends roughly on the value of the mutual achievements at the time of the conclusion of the contract, whether the sibling children then go out, decided this now the Federal High Court( BGH) in Karlsruhe in a judgment published on Friday, October 14, 2016( Az.: IV ZR513/15).Whether the parents actually need care later does not matter.

In the dispute, the parents had initially used each other as an heir. After the death of the survivor, daughter and son should share the inheritance.

(Image: drubig-photo / fotolia.com)( Image: drubig-photo / fotolia.com)

Four years after the mother's death, her father now transferred the parental home to her daughter. In return, he got a lifelong right of residence( so-called usufruct right) and under certain conditions the opportunity to withdraw from the donation. The daughter also undertook to care for and care for her father "throughout his life in healthy and sick days, but only when needed, in his home completely and free of charge, or to have him cared for and looked after free of charge".

The father died more than 13 years later at the age of 84, without ever having to care for. The daughter sold house and land for 120,000 euros. With his lawsuit against the sister, the son, who was left empty-handed, demands half of it for himself. After all, the parents would have agreed that together.

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Regional Court and Superior Court Berlin gave the son right. After all, the father had never been in need of care. Contrary to the binding common will of mother and father, however, the son was passed over at the homeowner.

After the Karlsruhe verdict, it is quite possible that the son was wrongly passed over - but probably not in the amount of half of the sale proceeds.

The father had been entitled to dispose of the formerly marital property now alone. That is legitimate, as long as he has a personal interest in it. This included safeguarding one's own care risk and the interest in retaining a close relative. However, the father should not intentionally harm the children as afterthought.

"a lifelong self-interest must not necessarily be accepted for the entire donation subject," said the BGH.Here could be a "mixed donation" with which the father on the one hand pursues legitimate interests, on the other hand, but the daughter may have made a donation beyond and thereby possibly also the son in deviation from the binding parental community testament has unfairly passed.

The date of the conclusion of the contract is decisive. Therefore, it does not matter if the father was actually in need of care. The decisive factor is rather the value of the nursing promise of the daughter at the time of the gift, more or less as a private long-term care insurance. The right of usufruct is also to be taken into account - and likewise not with the actual life expectancy, but with the life expectancy that is statistically expected at the time of the donation. In addition, here comes a discount for the right of termination of the father into consideration.

These things are then not necessarily exactly with the value of house and land count, it continues in the Karlsruhe judgment. Rather, it depends on an appreciation of all circumstances. Thus, the father had the agreement with and the attachment to his daughter quite "allowed to taste something".Conversely, the son may be able to provide evidence that his father deliberately wanted to discriminate against him and that behind the gift to the daughter may also have other reasons that do not occur in the contract concluded between father and daughter.

According to these guidelines, the Berlin Supreme Court will now review the dispute again, said the BGH in its judgment of 28 September 2016, now published in writing. Mwo

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