This week it occurred to me, in connection with some email about translation problems, that a good translation of Wegfall eines Vermächtnisnehmers is lapse of a gift (which is more like Wegfall eines Vermächtnisses).
These words are all totally untranslatable. I know everyone knows this, but a lot of the time you can get away with translating Erbe as heir. But their meanings are completely different. And suddenly, one day, there comes a translation where you have to be accurate, and the only way to do it is to use the German word and define it in brackets.
Legal systems won’t tolerate a moment when property is not owned, but German law and English law manage this completely differently. In German law, the moment someone dies, his or her Erbe(n) – successors in title, I might almost say – inherit the estate. They can reject the inheritance later, but at the moment of death there is automatic succession. The Erbe is contrasted with the Vermächtnisnehmer, a person who gets a smaller part of the estate, often an item or a sum of money, and has to claim this from the Erben.
In English, we have the word heir, and the heir to the throne has some similarity to the German Erbe. If the Queen dies, Prince Charles immediately becomes King, and the coronation (if any…) is merely a formality.
In law, the word heir has not been used in England since 1926. It used to mean someone who inherited land. A U.S. definition of heir is:
A person who is entitled to another’s real property by intestate succession. Those entitled to another’s personal property are the intestate’s distributees or next of kin. The distinction between real and personal property may no longer be significant, and many modern statutes use the term ‘heir’ to designate the intestate takers of any type of property.
(From Mark Reutlinger, Wills, Trusts, and Estates. Essential Terms and Concepts, ISBN 0 316 74112 4, a wonderful book consisting of masses of definitions of terms).
In German law, Erben exist whether there is a will or not.In English law, when someone dies, trustees own the estate until the estate has been wound up. The superordinate term for these trustees is personal representatives – they represent the person of the deceased, either by carrying out the terms of the will as far as possible (if there is a will they are called executors) or by dealing with the estate in line with statute if there is no will (if there is no will they are called administrators).
There is a contrast, not between Erben and Vermächtnisnehmer, but between those who receive land and those who receive personal property (everything except land). They are all beneficiaries. For all of them, the verb give and the noun gift are correct. But for real property, the terms are to devise / a devise, and for personal property, to bequeath / a bequest / a legacy.
So to call a Vermächtnisnehmer a legatee is OK if the gift is money, a car, jewellery, but not if it is land. And even more problematic is the fact that translating Vermächtnisnehmer as legatee or beneficiary conveys nothing of the relationship between Erbe and Vermächtnisnehmer in German law. (And I suppose it’s similar in other civil-law systems).
But there’s nothing new about this, it’s not really bloggable. Better find a couple of links to finish on. I found a German lawyer’s site with some U.S. terms from the law of succession. Looks OK but he should have per stirpes instead of per stripes. More articles on the topic on the same site here. And here is an article by Adrian Jack in German about the law of succession in England. Following this URL up leads to a list of PDF files on foreign law of succession (the site is the Deutsches Forum für Erbrecht or the German Forum for the Law of Succession).