What is a legal arbitrator
With an arbitration clause, the testator is given a set of tools to settle inheritance disputes outside of ordinary jurisdiction quickly, inexpensively, competently and in camera.
1. Admissibility of an arbitration clause
According to § 1066 ZPO, the testator can set up an arbitration tribunal by disposition upon death. The arbitrator decides at his own discretion and without a formal request (Firsching / Graf, Succession Law, 8th edition, page 43). Otherwise - if discretion is not used - according to the ZPO (loc. Cit.), See also §§ 1025 ff. ZPO.
2. Selection of the referee
The testator has full freedom in choosing the arbitrator, but no one may be his own judge. The testator can also order the appointment of the arbitrator by a third party. The person entitled to appoint may not, however, appoint himself (Zöller ZPO § 1035 Rn. 8 in connection with § 1066 ZPO). An executor can also be appointed as an arbitrator (Lange / Kuchinke § 32 III 4b).
The appointment of an institutional arbitration tribunal, e.g. "The German Arbitration for Inheritance Disputes e.V." (DSE) in Angelbachtal near Heidelberg, is also possible.
3. Subject of the arbitration proceedings
The powers of the arbitrator correspond to those of the testator. Since the testator can determine the heirs, suspend legacies, impose conditions, make conditions and appoint executors, all disputes resulting from this can be the subject of arbitration proceedings. The referee thus decides
the interpretation of a will,
Disputes about the contestability of testamentary dispositions,
Interpretation of legacies,
Interpretation of conditions,
Dispute in the estate dispute,
about the appointment of an executor
(Lange / Kuschinke a.a.O.).
The subject of arbitration cannot be disputes that are beyond the availability of the testator. these are
compulsory share claims,
Claims of the creditors of the estate, insofar as they are not based on an inheritance disposition, e.g. claims from a supplier to the testator,
the discharge of the executor. The probate court has exclusive jurisdiction here (RGZ 133, 128).
4. Differentiation from the arbitrator
In the event of a dispute, the arbitral tribunal decides - like any other court - on legal issues and the legal consequences of a will. The arbitrator, on the other hand, makes factual determinations, e.g. about the value of a legacy. Its activity is not based on the ZPO, but on § 315 ff. BGB. However, the arbitrator can also be appointed as an arbitrator. A maximum number of offices would be the executor appointed as arbitrator and arbitrator.
5. The arbitration clause as a condition?
Nieder (Handbook of the drafting of wills, marginal 1019) and J. Mayer (ZEV 2000, 263, 267) recognize the possibility of designing an arbitration clause as a condition. The prevailing opinion, however, denies this possibility (Lange / Kuchinke § 32 II 4 a). This problem becomes significant for the question of whether an arbitration clause with binding effect according to § 2278 Paragraph 2 BGB can be ordered. Since the legal dispute has not yet been decided by a higher court, the treatment of the arbitration clause as a condition is not an error if a binding effect is desired. In the worst case, the prevailing opinion applies. Depending on the personal importance of the arbitration clause, however, an inheritance could also be considered on condition that the longer-living person maintains the arbitration clause, but with all the resulting consequences, e.g. the constructive pre- and post-inheritance.
Testament sample "arbitration clause"
For all disputes that have their cause in my inheritance or are in connection with my will of ... or in the administration or dispute of the estate, I exclude the ordinary courts by way of condition.
As the arbitrator, I appoint ..., alternatively, the board of directors of the Network of German Executors with headquarters in Berlin should appoint an arbitrator. The referee decides as a single judge. At the same time, I appoint him as an arbitrator with the task of making binding expert opinions on valuation issues. The arbitrator is also authorized to obtain third-party reports at the expense of the estate if he considers this to be necessary.
As far as there are no legal provisions to the contrary, the arbitrator decides procedurally and materially at his own discretion. Otherwise, i.e. if he does not exercise his discretion, according to the ZPO and the GVG.
The hearing is not public. There is no legal requirement. For each dispute, the arbitrator receives twice the value fee according to § 13 RVG.
My division order must be observed when dealing with the estate. If my heirs do not agree on the value of the items subject to the division order, I will appoint Ms. X as an arbitrator. This has to determine the value at its reasonable discretion, but can also obtain expert assessments from third parties. The discount bears the costs.
The arbitrator receives remuneration of ......
Inheritance law Current information on the term "arbitration clause"18.6.2017
No assignment of disputes over the dismissal of an executor to an arbitration tribunal by the testatorThe Federal Court of Justice (BGH) recently decided in a ruling dated May 17, 2017, Az .: 4 ZB 25/16 whether the transfer ...
Effectiveness of compulsory portion claimsFacts The Munich Regional Court (judgment of February 24, 2017 - 13 O 5937/15 -) had to decide on the following facts: A person entitled to a compulsory portion made ...
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