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OLG Munich decision of 9 February 2023 - 33 UH 4/23e- (habitual residence of a person lacking legal capacity)

Central standards: FamFG §§ 5, 343; EuErbVO Art. 21

Guiding principle:

  1. If the deceased was in a nursing home in the same place for more than ten years before his death, he had his habitual residence in this place.
  2. This also applies if he was under guardianship during the entire period due to a mental illness and the guardian also exercised the right of residence.

Facts of the case:

The testator died in a nursing home in S in 2022. The deceased had lived in this nursing home since 2011. A guardian had been appointed for the deceased in 1974 by order of Günzburg District Court due to mental infirmity, whose area of responsibility included the care of assets, health care and residence. Since this time, the testator had lived in various homes, moving to the nursing home in S after the specialised nursing home in Oy-M, where the testator had lived until then, had burnt down. The care continued until the deceased's death. After the testator's death, the Sonthofen District Court - Probate Court - declared that it had no local jurisdiction in its decision of 5 September 2022. It based its decision on the fact that the testator had last had legal capacity when she had her habitual residence in A, which is part of the district of the AG Günzburg.

By order dated 23 January 2023 (VI 1306/22), the AG Günzburg - NachlassG - also declared that it lacked local jurisdiction and submitted the files to the Senate to determine the competent court. The AG Sonthofen was determined to have jurisdiction.

For the reasons:

6

II.

  1. According to § 5INo. 4 FamFG for the determination of jurisdiction after two probate courts in the district of the Munich Higher Regional Court declared themselves to be locally incompetent.

7

  1. The Sonthofen District Court was to be designated as the competent court, as the deceased had her last habitual residence here, § 343IFamFG.

8

  1. a) The „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 period prior to his or her death and at the time of death (OLG Munich ZEV 2017, 333; OLG Celle ZEV 2020, 229). In principle, a residence can also be established in retirement and nursing homes (OLG Düsseldorf FGPrax 2016, 240) if the testator was capable of forming his or her own will to remain at the time of moving in (Burandt/Rojahn/Gierl, 4th ed. 2022, FamFG § 343 Rn. 11;Krätzschel/Falkner/Döbereiner NachlassR/Krätzschel, 12th ed. 2022, § 37 marginal no. 3).

9 The requirements for establishing (habitual) residence with regard to the testator's legal capacity are disputed in detail and have not been conclusively clarified (OLG Munich ZEV 2017, 333no legal capacity, but capacity to form one's own will; OLG Celle ZEV 2020, 229: no need to determine the testator's legal capacity; for the current state of opinion: MüKoFamFG/Grziwotz, 3rd ed. 2019, FamFG § 343 marginal no. 19).