OLG Munich, decision of 22 June 2022 - 31 AR 73/22- (On the determination of the habitual residence of a testator who is in need of care due to his illness and consequently moves his previous place of residence).

Central standards: FamFG § 5 para. 1 no. 4, § 343 para. 1; EuErbVO Art. 4

Orientation rates:

To determine the habitual residence of the testator, a subjective element is required in addition to the objective element of actual residence, namely a will to reside (following OLG Munich FGPrax 2017, 134).

The direction of the testator's will is a circumstance to be taken into account in the overall assessment of the circumstances of life, but not the sole determining factor for establishing habitual residence (following OLG Hamm ZEV 2020, 634).

The testator's intentions can therefore not be given any significant weight if, from an objective point of view, they are not based on sound foundations.

Reasons:

1 I. The Munich Higher Regional Court is called upon to decide on the dispute between the Heilbronn and Munich Regional Courts regarding local jurisdiction pursuant to Section 5 (1) sentence 1 no. 4, (2) FamFG because the joint higher court is the Federal Court of Justice and the Munich Regional Court, which first dealt with the matter, belongs to the district of the Munich Higher Regional Court.

2 II. According to the parties 1, 3, 4 and 5 (= relatives of the deceased - E), E lived and worked in M from 1984 until 16 October 2020. On 16 October 2020, E went to his brother and sister-in-law (= B 1 and 4) in ..., as he was weak due to his cancer and could no longer care for himself. B 1 and 4 initially cared for E at home. On ... E died in hospital in ... E kept his flat in M. until his death and intended to return there in the event of his recovery. However, contrary to E's hopes, he did not recover and did not return to M.

Assessment of habitual residence in the light of Art. 4 EU Succession Regulation

3 III.1 The European Succession Regulation (EuErbVO), which came into force on 17 August 2015, stipulates the habitual residence of the deceased at the time of death as a fundamental characteristic for the connection of court jurisdiction in inheritance matters (Art. 4 EuErbVO). Accordingly, Section 343(1) FamFG in the version applicable from 17 August 2015 stipulates that the court in whose district the deceased had their habitual residence at the time of their death has jurisdiction.

4 The new version of Section 343 (1) FamFG as part of the IntErbRVG is intended to ensure that the courts have the most uniform local jurisdiction possible for issuing a certificate of inheritance and for issuing a European Certificate of Succession in accordance with Chapter VI of the EU Succession Regulation - and thus also to achieve synchronisation with Art. 4 of the EU Succession Regulation (BT-Drs. 18/4201 p. 59). Accordingly, the concept of „habitual residence“ must also be determined in the light of Art. 4 of the EU Succession Regulation, with reference to recitals 23 and 24. In this respect, an overall assessment of the living circumstances must be made, also taking into account the duration and regularity of visits, the particularly close ties to a state, language skills and the location of assets. It follows from this that „habitual residence“ is to be understood as the actual centre of a natural person's life, which is to be determined by means of an overall assessment of the testator's circumstances in the years prior to his or her death and at the time of death (OLG Munich of 22 March 2017 - 31 AR 47/17, ZEV 2017, 333 mAnm Rentsch).

5In addition to the objective element of actual residence, a subjective element, namely a will to reside or remain, is generally also required to determine the testator's habitual residence (Zimmermann in Keidel, FamFG, 20th ed. 2020, Section 343 para. 6, 7; OLG Hamm of 10 July 2020 - 10 W 108/18, ZEV 2020, 636 (637) with reference to Kurth). Otherwise, questions of forced or involuntary residence cannot be satisfactorily clarified. Furthermore, the substantive inheritance law of relatives could otherwise be manipulated (OLG Munich loc. cit.).

E moved his habitual residence shortly before his death, ...

6 2 On the basis of these principles, E's habitual residence at the time of his death was in ..., which falls within the local jurisdiction of Heilbronn Local Court.

7 a) E made a conscious decision to give up his independent life in M. and to go to ... to be cared for by his brother and sister-in-law. The fact that this did not correspond to his wishes, but was rather due to the external constraints of his illness, does not alter the fact that the necessary subjective element for establishing habitual residence was present. The decisive factor for this subjective element is the formation of the will that E was capable of at the time of his change of residence from M. to .... In contrast, it is irrelevant that this residence did not correspond to his ideal ideas or wishes.

... even if he had the will to return

8 b) The fact that E intended to return to M. in the event of his recovery does not alter the fact that his habitual residence was in ... at the time of the occurrence of the succession.

9 aa) The stay in ... was not merely a temporary stay that was foreseeable from the outset. According to his relatives, E was already so weak at the time of his move due to his cancer that he could no longer live alone in M. and was dependent on care. According to E, the care required due to his illness was therefore not guaranteed at his previous usual place of residence, but only with his relatives. By consciously placing himself in their care, this was also accompanied by a change in his habitual residence. The change of residence from M. to ... was not just for the purpose of utilising purely nursing or medical services. E could also have received the objectively necessary care services in a care home or hospice. The reason for the change of residence was therefore precisely E's social relationships with his brother, sister-in-law and other relatives in ...

10 bb) This is not precluded by his will to return to M. after his recovery. Although the testator's intention must be taken into account within the framework of the required overall consideration, it is not suitable for establishing habitual residence against the background of the actual living conditions contrary to their objective organisation. Otherwise, the fact that the EU Succession Regulation does not allow the testator to determine the place of jurisdiction would be inadmissibly circumvented (OLG Hamm of 17 December 2019 - 15 W 488/17, ZEV 2020, 634 (635)). Accordingly, the direction of the testator's will is a circumstance to be taken into account as part of the overall assessment of the circumstances of the testator's life, but not the sole determining factor for establishing habitual residence. The direction of the testator's will can therefore not be given any decisive weight if, from an objective point of view, it is not based on sound foundations. This is the case here: in view of the severity of his illness, a return of E to M. was objectively unrealistic; he succumbed to his illness after less than 3 months in ...