Hamburg-St. Georg Local Court, decision of 15 July 2022 - 970 VI 1412/19- (A challenge pursuant to Section 2079 sentence 2 BGB is excluded because it can be assumed that the testator would have made the disposition even if he had known the facts).

Central standards:

FamFG § 343 Para. 2, § 352 Para. 1 No. 5

BGB § 142 para. 1, § 2079, § 2080, § 2289, § 2290, § 2303 para. 1

EU Succession Regulation Art. 22, Art. 25 para. 3, Art. 26 para. 3

GERMAN CIVIL CODE

Tenor: 

1. The application for a certificate of inheritance by the party to 1) in the version dated 16 January 2020 is rejected.
2. The facts required to substantiate the application of the party re 2) dated 23 October 2020 for the issue of a certificate of inheritance are deemed to have been established.
3. Of the costs of the proceedings, the parties shall each bear 50% of the court costs. The party 1) shall bear his own extrajudicial costs as well as the extrajudicial costs of the party 2).
4. The immediate effectiveness of this decision is suspended. The issue of the certificate of inheritance is postponed until this decision becomes final.
5. The business value is set at € 2,500,000.

Reasons: 

I)

1 The testator, Professor Dr H., was born on ［...］ in ［...］ (now ［...］) and died on ... in South Africa. The deceased had German and South African citizenship. The deceased's last habitual residence was in South Africa. He worked there at the ［...］ as a professor of international law. He had assets in South Africa, Germany and Switzerland. The deceased's last address in Germany was ［...］ (see the court order dated 27 September 2019 on sheet 28 of the court file). The address is located in the district of the local court.

2 The deceased's mother was G.B. She passed away on ［...］. Mrs B. was a German citizen. By order of the Local Court of Celle dated 30 August 2019 (p. 36 of the court file), party 2) was appointed as guardian of the estate for the unknown heirs of Mrs B. Mrs B. was under guardianship during her lifetime. The testator had been appointed as her guardian, with the witness K. acting as substitute guardian.

3 The testator drew up a handwritten will on 3 October 1976. In this will, he named his mother as his sole heir in the event that he died single and (literally) „unmarried“. The will also contains a provision regarding substitute heirs. An addendum dated 23 December 1977 contains provisions regarding the testator's student belongings; according to this addendum, the testator was a member of the student fraternity ［...］ at the time.

4 The deceased had a partner, T.. According to her, the two had met around April 2014. A romantic relationship subsequently developed (cf. the Founding Affidavit of the partner dated 14 November 2019, p. 87f of the court file).

5 The testator and his mother concluded a contract of inheritance on 5 May 2018 for the deed of notary J. (deed no. 72/2018, sheet 37 of the court file). In the inheritance agreement, the testator and his mother appointed each other as sole heirs. They also revoked all previous dispositions of property upon death as a precautionary measure. It then states verbatim:

„The mutual dispositions shall be in accordance with the contract. We were instructed by the notary public who notarised the contract of inheritance about the obligations arising from it. ... The notary informed us ... of the significance and effect of an inheritance contract, in particular that the provisions of the inheritance contract can neither be cancelled nor amended unilaterally. “.

6 The inheritance contract does not contain a choice of law clause. The inheritance contract also does not reserve a right of cancellation.

7 According to the notarised deed, party 1) was present at the conclusion of the inheritance contract.

8 Also on 5 May 2018, the notary J. notarised a promise of donation by the testator to the witness K. (UR no. 73/2018, sheet 644 of the court file). This has the following subject matter: The testator's mother had transferred a forest estate as a gift. The testator had contested this transfer on behalf of his mother. In the event that the lawsuit regarding the retransfer would end in favour of his mother, the testator promised in the notarised promise to donate certain land from the forestry estate to the witness K. The reason for the gift was that the witness K. had rendered outstanding services to the testator's mother. Please refer to the notarised deed for details.

9 The testator proposed marriage to his partner on 26 June 2018 (her birthday) (see her details in the Founding Affidavit of 14 November 2019, page 88).

10 On 29 January 2019, the testator drew up a will in which he appointed his partner as his sole heir. He also appointed P. as executor for the estate located in South Africa. For his estate located in Germany and Switzerland, the testator appointed party 1). The will is typewritten and signed by the testator and two witnesses. The will does not contain a choice of law clause.

11 Also on 29 January 2019, the testator married his partner T.. Subsequently, he also arranged for his partner's underage daughter, M., to be adopted by him. The details of this are disputed between the parties involved.

12 The parties are in dispute as to whether the testator had testamentary capacity at the time the will was drawn up on 29 January 2019 or whether he had legal capacity at the time of his marriage and adoption: the testator suffered from prostate cancer. In the course of the treatment, an infection of the lungs occurred. According to a certificate from the doctor Dr van D. dated 25 January 2019 (sheet 134 of the court file), the testator was unable to conduct his own affairs at the time (25 January 2019) („unable to conduct his own affairs at the moment“). In a further letter from Dr van D. dated 4 May 2020 (sheet 185 of the court file), it is stated that the deceased underwent extracorporeal membrane oxygenation (ECMO) from 25 January 2019. In simple terms, this involves a machine taking over the patient's respiratory function. The letter dated 4 May 2020 also states that the deceased no longer needed to be sedated as a result of this treatment. The deceased was extubated on 27 January 2019. He was awake from this point onwards and was able to communicate clearly. At the time he had decided to marry, he had not been under any sedative medication or opioids. She had examined the deceased and the deceased had been informed of the date, time, place and person.

13 In a written submission by lawyer D. dated 1 April 2019 (sheet 64 of the court file), T. declared to the Local Court of Celle (probate court) that he contested the inheritance contract based on Sections 2079 and 2080 BGB. In written submissions dated 10 August 2020 and 30 August 2021, the party to 1) stated that M. had also contested the inheritance agreement.

14 On 16 May 2019, the party to 1) filed an application for a certificate of inheritance for the deed of the notary Dr F., according to which T. became the testator's sole heir on the basis of the will of 29 January 2019. The inheritance contract dated 5 May 2018 is not mentioned in the application for a certificate of inheritance; contrary to Section 352 para. 1 no. 5FamFG, the application for a certificate of inheritance does not contain any information on the question of whether there are any further dispositions by reason of death. The application for a certificate of inheritance was not limited to the estate assets located in Germany.

15 In its ruling dated 20 November 2019, the court stated that the application for a certificate of inheritance in its version dated 16 May 2019 had no prospect of success.

16 On 16 January 2020, the party to 1) supplemented his application for a certificate of inheritance dated 16 May 2019 to the deed of the notary Dr F. The party to 1) is now requesting the issue of a third-party certificate of inheritance, which is limited to the estate assets located in Germany. The supplement dated 16 January 2020 states that the inheritance agreement dated 5 May 2018 was contested by the testator's wife.

17 On 10 September 2020, the second party in his capacity as curator of the estate filed an application for the issue of a certificate of inheritance for the unknown heirs of Mrs B., according to which B. has become the testator's sole heir. According to the application for the certificate of inheritance, the certificate of inheritance is to be limited to the assets located in the Federal Republic of Germany and Switzerland. On 23 October 2020, the party 2) amended his application for a certificate of inheritance. He is now requesting the issue of a certificate of inheritance that relates to the entire estate.

18 The party to 1) submits, inter alia, the following:

19 The testator was fully conscious at the time of the marriage, the drawing up of the will and the authorisation to adopt. This was also confirmed by the attending physician Dr van D. The testator was in a very poor state of health on 25 January 2019. He had to be artificially ventilated. Instead of allowing him to die, there was an opportunity to support his lung function with ECMO treatment and enable him to continue living with a clear mind.

20 The will had been drawn up shortly before the marriage in accordance with South African regulations in the presence of two witnesses. The witnesses were the nurses permanently and exclusively assigned to the deceased for his care in shifts.

21 The party to 1) believes that South African law was implicitly chosen for the will. The will corresponded in form and diction to South African wills. The choice of language alone was a decisive indication of the chosen legal system. There was no reason for the agreement of German law. Furthermore, although both the testator and the party 1) had German identity documents, their South African ID numbers were listed. In German wills, it was neither necessary nor customary to state ID numbers. The executors of the will were also exempted from providing a security for their activities that was unknown under German law. The lack of an express choice of law also speaks in favour of the applicability of South African law. If a will had been drawn up in South Africa between South African parties or at least parties living in South Africa, the applicability of German law would have had to be mentioned.

22 With regard to the inheritance contract, the party to 1) believes that this was effectively contested, namely pursuant to § 2079 BGB due to the passing over of the deceased's wife and (adopted) daughter as persons entitled to a compulsory portion. The inheritance contract was subject to German law. As it can only be applied uniformly, the avoidance of the inheritance contract is also governed by German law. However, a will can also be contested in its entirety under South African law. In addition, the inheritance contract would be inadmissible in South Africa due to a violation of the freedom to make a will.

23 The party to 2) submits, inter alia, the following:

24 The testator had been on the verge of complete lung failure. In this condition, the testator was no longer able to make a will. He was legally incapable of making a will. In addition, the testator must have been suffering from extreme pain due to the carcinoma and the metastases scattered throughout his body and had most probably been treated with morphine. This also ruled out testamentary capacity. The medical records contradict Dr van D.„s statement that the testator was not under the influence of medication on 29 January 2019. He had been given the painkiller Senaleve (referred to as “Senaleave" in the medical file), which had the effect of restricting consciousness. Both the will and the marriage as well as the adoption were invalid against this background.

25 Due to the invalid marriage and the invalidity of the adoption, the challenge to the inheritance contract declared by the testator's widow and her daughter would come to nothing. Under South African law, there would in any case be no right to a compulsory portion and therefore no right of avoidance under Section 2079 BGB.

26 It is also disputed that the signature recognisable on the will is that of the testator. It is also disputed that the signature was executed in the presence of the witnesses named in the document. It is disputed that the will was signed by the testator in the presence of two witnesses and then countersigned by the witnesses. Admittedly, there is no concrete evidence that the will was not signed by the testator and the witnesses named in the document. However, the testator's signature under the will is surprisingly clear for someone who is dying.

27 Furthermore, it is disputed that under South African law a will can be validly made by signing a typewritten, pre-formulated will.

28 The will was also invalid due to the inheritance contract concluded between the testator and his mother. The party to 1) was not entitled to file an application due to the invalidity of the will.

II) 

29 The application for a certificate of inheritance by party 2) is admissible and is also successful on the merits. In contrast, the application for a certificate of inheritance filed by party 1) must be rejected. Based on the inheritance agreement dated 5 May 2018, the deceased's mother became his sole heir.

30 1) It should be noted at the outset that the court seised has local and international jurisdiction. International jurisdiction arises from Article 10(1)(a) of the EU Succession Regulation. The local jurisdiction results from Section 343 Para. 2 FamFG.

31 2) German law is applicable both to the inheritance contract and to the entire succession upon death. The will drawn up by the testator does not change this (see a). The contract of inheritance is valid (see b). In particular, it has not been effectively contested (see c). The testator's will dated 29 January 2019 is therefore already invalid because it would impair the rights of his mother as the contractual beneficiary of the inheritance contract (see d). Against this background, it is irrelevant whether the testator actually had testamentary capacity when the will of 29 January 2019 was drawn up. It is also irrelevant whether the will was otherwise validly drawn up. It can also be left open whether the testator effectively married his partner and effectively adopted her daughter.

32 a) With regard to the applicable law, the following applies:

33 aa) The contract of succession does not contain an express choice of law. However, as the reference of Art. 25 para. 3 EU Succession Regulation to Art. 22 EU Succession Regulation shows, a choice of law does not have to be made expressly. It can also result from the provisions of the inheritance contract. According to Recital 39 of the EU Succession Regulation, a choice of law is to be assumed in particular if reference is made to specific provisions of the law of a state or if the law of that state is mentioned in another way.

34 As part of their choice of law, the contracting parties have the option of making a choice of law in accordance with Art. 25 para. 3 of the EU Succession Regulation only with regard to the admissibility, substantive validity and binding effect of the inheritance contract (the law chosen for these sub-areas is hereinafter referred to as the „law of constitution“). However, they can also make a comprehensive choice of law in accordance with Art. 22 EU Succession Regulation for the entire law applicable to the succession (MüKoBGB/Dutta, 8th ed. 2020, EuErbVO Art. 25 para. 6; Hüßtege/Mansel, BGB, Rom-Verordnungen - EuErbVO - HUP, EuErbVO Art. 25 para. 22, beckonline). Whether the contracting parties only wanted to determine the statute of succession or wanted to make a comprehensive choice of law must be determined by interpretation (Hüßtege/Mansel, loc. cit.).

35 In the present case, it is clear from the provisions of the inheritance agreement that the contracting parties wished to choose German law. The inheritance contract is clearly based on the binding effects provided for in Sections 2289 and 2290 BGB. Thus, the notary who notarised the contract instructed the contracting parties that the provisions of the inheritance contract cannot be unilaterally revoked by one of the contracting parties.

36 The choice of German law was also permissible in the present case. According to Art. 25 para. 3, 22 para. 1 of the EU Succession Regulation, the contracting parties could choose the law of the state to which they belonged at the time of the choice of law or at the time of their death. A person who has several nationalities can choose the law of one of the states to which he or she belongs (Art. 22 para. 1 subpara. 2 of the Succession Regulation). In the present case, Mrs B. was a German national. The testator also had German citizenship in addition to his South African citizenship.

37 The court understands this choice of law to mean that the contracting parties not only wanted to determine the statute of incorporation, but also wanted to make a comprehensive choice of law. In case of doubt, it must be assumed that a comprehensive choice of law was intended in accordance with Art. 22EuErbVO (for such an unwritten presumption rule MüKoBGB/Dutta, EuErbVO Art. 24 para. 14, beckonline). In principle, it cannot be assumed that a testator or, in this case, the parties to the contract, wish to subject their succession to potentially different rights (MüKoBGB/Dutta, loc. cit.). Such a presumption is also supported by the fact that the party who only wishes to make a specific partial choice of law will tend to explicitly express this particular regulatory wish (BeckOK BGB/Loyal, 62nd ed. 1.5.2022, EuErbVO Art. 24 para. 20). In the present case, there are no indications that the parties to the inheritance contract only wanted to choose the statute of succession. The taking of evidence has shown that the question of the applicable law was not expressly discussed during the preparation and subsequent notarisation of the contract of succession. However, if the question of the applicable legal system was not the subject of the discussion, this can only mean that the parties assumed that a uniform legal system would apply. Anything else would have required discussion and would certainly have been expressly regulated.

38 bb) Neither the statute governing the establishment of the inheritance contract nor the inheritance statute as a whole have been amended by the testator's will dated 29 January 2019. This applies irrespective of the question of whether the testator was capable of making a will at all when this will was drawn up and whether the will is otherwise to be regarded as effective.

39 As stated by the party to 1), the testator may have implicitly chosen South African law in his will. However, the statute of succession can only be amended jointly by the parties to the contract of succession (MüKoBGB/Dutta, 8th ed. 2020, EuErbVO Art. 25 para. 6; see also Hüßtege/Mansel, BGB, Rom-Verordnungen - EuErbVO - HUP, EuErbVO Art. 25 para. 21). This follows from the wording of Art. 26 para. 3 of the EU Succession Regulation, according to which the choice of law must be made by „the parties“, i.e. all contracting parties jointly. If the original choice of law must be made by all contracting parties, this must also apply to a subsequent change to the choice of law.

40 However, Art. 26 para. 3 of the EU Succession Regulation only applies to the statute of constitution, but not to the statute of succession. The EU Succession Regulation does not contain any express provision on the amendability of the succession statute. However, Art. 22 para. 3 of the EU Succession Regulation stipulates that the substantive validity of the legal act by which the choice of law is made is subject to the chosen law. This means that the validity of the legal act by which the chosen law is changed (and thus the amendability of the succession statute as a whole) must also be subject to the law originally chosen (in this case, German law) (MüKoBGB/Dutta, 8th ed. 2020, EuErbVO Art. 22 para. 31).

41 Under German law, the testator could not unilaterally change the law of succession by will because the court was convinced that the choice of law was a contractual disposition within the meaning of Section 2278 (1) BGB.

42 To this end, it should first be noted that the choice of the applicable inheritance law can, in principle, be made by contract in accordance with Section 2278 (2) BGB. However, the law does not specify what type of dispositions are contractual dispositions. The term "contractual dispositions" is not defined there. There is also no rule of interpretation. The will of the contracting parties is decisive for the question of whether a disposition qualifies as a contractual disposition (BeckOGK/Röhl, 1.5.2022, BGB § 2278 marginal no. 13). The will of the contracting parties is also decisive for the question of whether a disposition that is not expressly designated as contractual is to be regarded as intended to be contractual (OLG Hamm NJW-RR 2005, 450).

43 In the present case, the inheritance contract - by its very nature - does not contain any statement as to whether the choice of law should constitute a contractual disposition. As explained, the choice of law was not made expressly, but merely implied. However, the fact that the choice of law was intended to constitute a contractual disposition results from the following consideration: In the present case, the appointment of the heirs was made as a contractual disposition binding on both parties. This can already be seen from the wording of the inheritance contract. It expressly states: „The dispositions of both parties shall be in accordance with the contract.“ (Horn/Kroiß Testamentsauslegung, § 21 Abgrenzungsfälle zur Feststellung der Vertragsmäßigkeit erbvertraglicher Verfügungen und zu Änderungsklauseln Rn. 20, beckonline). In order for the testamentary disposition to have this binding effect, the substantive law that provides the binding effect (in this case German law) must also be regarded as contractually agreed within the meaning of Section 2278 (1) BGB. Otherwise, the binding effect could be removed again (at least according to the provisions of the BGB) by changing the substantive law „through the back door“. The choice of law must therefore be regarded as a contractual disposition as long as the parties - as in this case - do not expressly agree that the choice of law should not be in accordance with the contract.

44 According to the above, initially only the choice of the statute of succession can be regarded as contractually agreed within the meaning of Section 2278 para. 1BGB, as only the statute of succession is decisive for the question of binding effect. However, as already explained, the contracting parties in the present case did not differentiate between the statute of establishment and the statute of succession in the context of the choice of law. In the absence of this differentiation, the choice of law must therefore be categorised as a contractual disposition overall, just as the choice of law made by the contracting parties (as explained) is decisive for both the statute of establishment and the statute of succession. In principle, it would also be conceivable not to categorise the choice of law as a whole as a contractual disposition due to the lack of differentiation. However, such an approach would not do justice to the fact that the law governing the establishment of the estate - as the basis for the binding effect of the mutual appointment of heirs - should be agreed as binding.

45 cc) As a result, German law applies exclusively to both the statute of establishment and the statute of succession.

46 b) Measured against German law, the inheritance contract was validly concluded. In particular, the court has no indication that the testator's mother Mrs B. was incapable of making a will. She was indeed under guardianship at the time the inheritance contract was concluded. However, the parties involved did not claim that she was incapable of making a will. In addition, according to the information provided by the party to 2), a testamentary capacity expert opinion was obtained in proceedings before the Local Court of Celle to clarify the question of who became the heir after Mrs B.. The expert had come to the conclusion that Mrs B.'s testamentary incapacity could not be established.

47 It is irrelevant whether the inheritance contract would be effective under South African law. Only German law is applicable for the assessment of the validity of the inheritance contract (Art. 25 para. 3 EU Succession Regulation).

48 c) The inheritance contract has not been effectively contested. The consequence of such a challenge would be that the inheritance contract would be invalid from the outset (Section 142 para. 1 BGB), so that the testator's will drawn up after the inheritance contract would be valid despite Section 2289 para. 1 sentence 2 BGB (cf. Palandt-Weidlich Section 2078 para. 10). In the present case, however, there is no ground for contestation. In particular, this does not arise from Section 2079 BGB.

49 aa) The contestability of the contract of succession is an issue that is part of the statute of succession. Pursuant to Art. 26 para. 1 lit. e EU Succession Regulation, substantive validity within the meaning of Art. 25 EU Succession Regulation includes questions of mistake and all other questions relating to defects of will. Art. 25 EU Succession Regulation includes questions of error and all other questions relating to defects of will. Art. 26(1)(e) of the EU Succession Regulation also includes avoidance on the grounds that a person entitled to a compulsory portion has been bypassed because, objectively speaking, this is a case of error (see MüKoBGB/Leipold, 8th ed. 2020, BGB § 2079 marginal no. 1 (case of error of motive); also Kappler in: Groll/Steiner, Praxis-Handbuch Erbrechtsberatung, 5th ed. 2019, Formen letztwilliger Verfügungen, para. 6_189; also Stürner in: Erman, BGB, 16th ed. 2020, Art. 26 EuErbVO, para. 7: This covers the establishment of the disposition as a declaration of intent, the defects of intent to be assessed at the time of establishment (e.g. Section 2078, not Section 2079 BGB)).

50 The question of who is entitled to a compulsory portion is a preliminary question that must be addressed separately. In order to answer this (preliminary) question, the general law of succession must be taken into account in accordance with Art. 23 para. 2 lit. h of the EU Succession Regulation. As explained above, German law is the overall law governing the succession in the present case, meaning that both the question of the contestability of the inheritance contract and the question of entitlement to a compulsory portion are governed by German law.

51 bb) According to Section 2303 para. 2 BGB, the deceased's wife would generally be entitled to a compulsory portion. The same applies in accordance with § 2303 para. 1 BGB with regard to the children of the deceased, which also includes adopted children (Palandt-Weidlich § 2303 BGB para. 9). In the present case, the question of whether the marriage and adoption were effective or not (in particular due to the testator's lack of legal capacity) can be left open. The inheritance contract cannot be contested for other reasons.

52 The testator may have passed over T. and her daughter M. within the meaning of Section 2079 BGB. Such an omission exists if the person entitled to a compulsory portion has neither been disinherited nor appointed as an heir or bequeathed a legacy. The testator must have unconsciously disregarded the person entitled to a compulsory portion. The exclusion from the inheritance must not be the result of a conscious decision (Burandt/Rojahn/Czubayko, 3rd ed. 2019, BGB § 2079 margin no. 14). The fact that the partner and her daughter were not mentioned in any way in the inheritance contract speaks in favour of such an unconscious decision by the testator in this case.

53 However, avoidance is excluded pursuant to Section 2079 sentence 2 BGB because it can be assumed that the testator would have made the disposition even if he had known the facts:

54 When examining whether the requirements of Section 2079S. 2 BGB, the hypothetical will of the testator at the time the testamentary disposition was made is decisive. The examination must be based on how he or she would have disposed if he or she had had a correct view of the subsequent situation with regard to the person entitled to the compulsory portion, but had otherwise allowed those circumstances to affect him or her that determined him or her at the time the will was drawn up (BGH NJW 1981, 1735, 1736). Changes other than the knowledge of the person entitled to a compulsory portion or their addition after the drafting of the will may therefore not be taken into account (MüKoBGB/Leipold, 8th ed. 2020, BGB § 2079; Palandt-Weidlich § 2079 BGB marginal no. 5). Since the testator's considerations when drawing up the will (or in this case the inheritance contract) must be taken into account, it is relevant whether future rights to a compulsory portion were already to be expected (MüKoBGB/Leipold, 8th ed. 2020, BGB Section 2079 para. 19). If it was foreseeable for the testator at the time the will was drawn up that he would marry or adopt another person, it must generally be assumed that he had already taken this circumstance into account when making the disposition (BayObLG FamRZ 1992, 988; BeckOK BGB/Litzenburger, 61st ed. 1.2.2022, BGB Section 2079 para. 11).

55 In the present case, the question is therefore whether the testator would have concluded the inheritance contract with the present content even if he had already known at the time of its conclusion that he would later marry his partner and adopt her daughter. The court is convinced that this would have been the case:

56 (1) Firstly, it must be taken into account that the testator's partner did not only enter his life after the contract of inheritance was concluded. Both were already in a relationship at the time the inheritance contract was concluded. According to the information provided by the witness K., the testator had already introduced his partner to his mother before the contract of inheritance was concluded. The court is also convinced that the testator was aware of his partner at the time of notarisation. This is because, according to the credible statements made by the notary J., who notarised the deceased, she was present in the notary's office on the day of notarisation, even though she was not present at the notarisation itself.

57 (2) There is also much to suggest that the testator already intended to marry his partner at the time the inheritance contract was concluded. According to the testator's statements, he proposed to his partner on 26 June 2018 (her birthday) and thus close in time to the conclusion of the inheritance contract. As this date has not been questioned by any of the parties involved, the court assumes that the information provided by the partner is correct in this respect. The fact that the testator had apparently not communicated his marriage plans to anyone does not speak against the testator's intention to marry at the time the inheritance contract was concluded. In any case, none of the parties or witnesses had reported that they were aware of such plans. The witness D. stated during his testimony that the subject of „marriage“ had been an unpleasant topic for the testator. However, the court assumes that this was not due to the fact that the testator did not actually want to get married. Rather, the reason is likely to be that the testator's mother V. would have objected to the marriage. According to the information provided by witness D., the mother of the testator S. had come to terms with the fact that her son was living in Africa.

58 (3) A further indication that the testator would have concluded the inheritance contract with the present content despite the later marriage/adoption is the following: According to the results of the taking of evidence, the testator assumed that he would outlive his mother. Both parties stated this at the hearing on 3 November 2020 (sheet 495 of the court file). This is confirmed on the one hand by the statements of the witness D.. During his hearing, he stated that, according to common knowledge, it was assumed that the son would outlive the mother if the son M. was 40, while the mother was already 85 or 86 years old. This is further confirmed by the statements of the witness K.. He stated that it was a matter of course that - as is normally the case - the son would outlive the mother.

59 Whether the assumption that the testator would outlive his mother was justified in the present case, taking into account the testator's cancer, can be left open. There is much to suggest that the assumption was not objectively justified. For example, the witness H. stated during his examination that it was generally known that the testator was ill and that his mother was no longer in the best of health, so that a „race“ between the two could possibly have ensued.

60 However, it is not the objective circumstances but the subjective view of the testator that is decisive. In this respect, the court was convinced by the evidence that the testator obviously did not want to recognise his cancer or its seriousness. This was expressly stated in this form by party 1). In principle, the court has considerable doubts regarding the credibility of party 1). This is because the court considers it very likely that party 1) deliberately did not mention the inheritance contract between the testator and his mother in his application for a certificate of inheritance dated 16 May 2019 in order to avoid the legal problems this would have caused. The party 1) was questioned on this point during his hearing at the hearing on 20 April 2022. However, he was unable to explain how it came about that the inheritance contract was not mentioned in the application for a certificate of inheritance dated 16 May 2019. He merely stated that it was completely unthinkable for him to withhold this inheritance contract, which was essential, from the court. In his statement of 12 June 2020, the legal representative of the party 1) also merely stated that the entire text passage had been deleted by mistake. However, the authorised representative did not state who deleted this passage and, above all, why this was done. It seems difficult to imagine that the text passage was deleted by mistake, as the subject of the inheritance contract and its avoidance forms the centrepiece of the application for a certificate of inheritance.

61 However - and this should be expressly emphasised - the court does not consider it proven that party 1) deliberately withheld the inheritance contract from the court. It is also possible that the inheritance contract was not mentioned in the application for a certificate of inheritance dated 16 May 2019 due to a lack of diligence. A lack of diligence on the part of party 1) can also be found with regard to other points. For example, when submitting the application for a certificate of inheritance dated 16 May 2019, he did not realise that he had only been appointed as executor of the estate in Germany and Switzerland and that he should therefore not have the authority to apply for a certificate of inheritance for the entire estate. In addition, the application for a certificate of inheritance by party 1) was almost rejected for formal reasons because the latter did not submit an apostilled copy of the testator's will, although he had such a copy at his disposal and the court had pointed out that the submission of a copy of the will would only be sufficient if this copy was apostilled.

62 Despite the aforementioned reservations, the court also considers the statement by party 1) that the testator apparently did not want to acknowledge his cancer or its seriousness to be credible, taking into account his personal impression of party 1) during the interrogation. Party 1) stated without hesitation that this was a presumption on his part. There is also no apparent reason why he should have told the untruth on this point. After all, the fact that the testator did not want to admit that he had cancer speaks in favour of the existence of the requirements of Section 2079 sentence 2 BGB. Above all, however, the information provided by party 1) is confirmed by the testimony of witness K.. During his interrogation, he stated that the testator had always presented his cancer as (literally) a „trifle“.

63 (4) An indication that the testator assumed that he would survive his mother is also the testator's gift promise to the witness K., which was notarised as deed no. 73/2018. The basis of the gift promise is that the testator's mother dies before the testator, so that the testator becomes E. his mother and the forest property (subject to a successful outcome of the reclaiming process) falls to him.

64 (5) Because the testator assumed that he would survive his mother, there was also no need from his point of view to take his partner or her daughter into account in any way in the inheritance contract. He could easily have made a new will after his mother's death.

65 (6) Including the partner in the inheritance agreement would also have entailed further need for negotiation (and possibly also additional potential for conflict). The testator should have clearly communicated to his mother that after her death her assets would „go to the bush“, as the testator's mother used to say according to the statements of witness D.. However, from the point of view of the parties involved, there was no reason to include the testator's partner in the inheritance agreement. The purpose of the inheritance contract was not to create a comprehensive regulation for legal succession by reason of death. According to the unanimous statements of both parties involved (see the hearing minutes of 3 November 2020, sheet 493 of the court file), the conclusion of the inheritance agreement merely served to prevent the transfer of assets by the testator's mother due to advances by third parties. Specifically, as the hearing on 20 April 2022 showed, this involved the witness K.. Whether the witness K. actually pursued unfair motives is - as the hearing of 20 April 2022 also showed - disputed between the party to 1) on the one hand and the witness K. on the other. However, it does not need to be decided here, as the present case only concerns the meaning and purpose of the inheritance contract. In this regard, the witness K. also stated during his hearing that the parties to 1) had wanted to use the inheritance agreement to prevent the testator's mother from leaving anything to anyone in a will.

66 cc) The inheritance contract cannot be contested because the testator's mother disregarded the testator's adopted daughter when appointing her heir. A person is not disinherited and therefore not bypassed if they are a more distant descendant according to the interpretation rule of Section 2069 (BeckOGK/Harke BGB Section 2079 marginal no. 10, beckonline; Staudinger/Otte (2019) BGB Section 2079, marginal no. 8). According to this provision, in the event that the testator has provided for one of his descendants (here Mrs B. in the inheritance contract her son, the testator) and this descendant ceases to exist after the will (or inheritance contract) has been drawn up, it must be assumed in case of doubt that his descendants (here the testator's adopted daughter) will take his place. Whether the inheritance contract is actually to be interpreted in the sense of § 2069 BGB can be left open. If the inheritance contract were to be understood to mean that the testator's adopted daughter should not take the place of the testator, this would mean that Mrs B. would have considered the present case. In this case, however, the avoidance pursuant to Section 2079 sentence 2 BGB would be excluded, as Mrs B. would have concluded the inheritance agreement in full knowledge of the facts.

67 d) This means that the will drawn up by the testator is invalid in accordance with Section 2289 BGB, without the question of the testator's testamentary capacity or the question of the formal validity of the will being relevant. § Section 2289 BGB is applicable in the present case, as the binding effect of the inheritance contract is assessed in accordance with German law, as explained above. Pursuant to Section 2289 (1) BGB, a subsequent disposition of property upon death is invalid if it would impair the rights of the beneficiary under the contract. In the present case, the will impairs the right of the testator's mother, who is the beneficiary of the inheritance contract. On the one hand, this is due to the fact that the will does not name her as heir, but rather the testator's wife. In addition, her rights are also impaired by the execution of the will stipulated in the will, as it is not the mother who is authorised to dispose of the estate (as under the contract of inheritance), but the executors of the will.

68 e) The following consequences arise for the parties' applications:

69 The application by party 1) is unsuccessful. The party 1) is not authorised to file an application. It is true that executors are generally authorised to file an application, as they exercise the rights of the heirs by virtue of the assignment of duties (Palandt-Weidlich § 2353 BGB para. 10). In the present case, the execution of the will has not been effectively ordered due to the violation of § 2289 Para. 1 BGB. T. did not become the testator's sole heir due to the violation of Section 2289 para. 1 BGB.

70 The application of party 2) in the version dated 23 October 2020 is successful in its entirety, as the testator's mother has become his sole heir.

71 It is not relevant in this context that the succession would possibly have been assessed differently by a South African court, as it would have applied South African law on the basis of its private international law. As explained above, German law is to be applied in accordance with the EU Succession Regulation to be applied by the court.

III)

72 1) The decision on costs follows from §§ 81, 83 FamFG. The party re 1) has partially withdrawn his application by finally only requesting the issue of a foreign certificate of inheritance limited to the estate assets located in Germany instead of an unrestricted certificate of inheritance. In the interests of T. and her daughter M., the court draws attention to the following in this context: If additional costs were incurred as a result of the application for an unrestricted certificate of inheritance, the party 1) must in any case reimburse these additional costs by way of compensation. He could (and should) have recognised that an application for an unrestricted certificate of inheritance could not be successful.

73 The court imposed the court costs on both parties at 50% each, as both (the party to 1) with his original application for a certificate of inheritance and the party to 2) with his most recent application for a certificate of inheritance) had requested the issue of a certificate of inheritance for the entire estate. Accordingly, the transaction value was to be set at the value of the entire estate.

74 The court imposed the extrajudicial costs solely on party 1). The latter must bear his own costs due to his unsuccessful application. He also has to bear the out-of-court costs of party 2) because he caused them to be incurred as a result of his unauthorised application for a certificate of inheritance.

75 2) The immediate effectiveness of the order was to be suspended in accordance with Section 352e (2) sentence 2 FamFG.

76 3) In determining the business value, the court followed the information provided by the party to 1) in the statement of 30 September 2020 (page 4). The court does not have any further means of cognition.