Gifting a pension insurance policy to a new policyholder

The plaintiff, the sole heir of the deceased testatrix, sought claims based on a pension insurance contract from the insurer, which was the defendant in these proceedings. In 2004, the testatrix had taken out a pension insurance policy with the defendant subject to the agreement that upon the death of the testatrix, person X would as insured person become the new policyholder. The testatrix drew up a will in 2009, in which she appointed the plaintiff as the sole heir to her assets. In September 2012, the testatrix requested the defendant to withdraw an amount of EUR 25,000 from the pension insurance and to give this to her, the testatrix. Directly after this, the testatrix requested the defendant to change the beneficiary to the effect that the plaintiff was to be appointed beneficiary instead of person X upon the death of the testatrix. The defendant refused to grant either request, against which the plaintiff then took legal action. In the alternative, the plaintiff asserted claims for damages on the grounds that the testatrix had been advised wrongly and that the plaintiff was included in the insurance contract as a contract with protective effect for the benefit of third parties.

The Hamm Higher Regional Court negated any claim of the plaintiff to insurance payments. The Court held that as a general principle the sole heir of a policyholder with respect to a pension insurance contract does not become the legal successor of the policyholder if upon the death of the policyholder the status of policyholder has already been transferred to the insured person on the basis of a valid gift agreement which has already been validly executed. According to the court, the declaration made by the testatrix when the agreement was concluded that her status as policyholder was upon her death to be transferred to person X constituted an assignment pursuant to section 398 of the German Civil Code. The corresponding declaration of the testatrix also constituted an executed gift inter vivos pursuant to sections 2301 subsection 2, 516, 518 subsection2 of the German Civil Code. The revocation of such a gift was only possible subject to the conditions set forth in sections 530 ff. of the German Civil Code. The Court held that in this case, however, no appropriate declaration of revocation to person X existed and for this reason a revocation pursuant section 530 of the German Civil Code was ruled out.

The Hamm Higher Regional Court also rejected the claim for damages under a contract with protective effect for the benefit of third parties. The Court stated in the grounds of its judgment that the defendant would only have been able to advise the testatrix to request the entire amount from the pension insurance or create an irrevocable right for the plaintiff to draw insurance payments. The Court stated that it could not, however, be established that the policyholder, who was obviously aware of the possibility to access her account and had specifically not done so, would have followed this advice before her death.