OLG Munich, decision of 22 March 2017 - 31 AR 47/17

Central standards: Article 4 EU Succession Regulation; Section 343 (1) FamFG

(jurisdiction of the probate court; no change of habitual residence in the case of a legally incapacitated person)

Editor's note:

Only persons with legal capacity can establish habitual residence within the meaning of Article 4 of the EU Succession Regulation. Representation is not permitted.

For the reasons:

By order of reference dated 9 February 2017, the Landshut Probate Court requested a decision on the jurisdiction of the probate court pursuant to Section 5 (1) no. 4 FamFG to determine the heirs after the deceased (see Art. 37 (1) AGGVG) and (if applicable) to notify the parties involved (Section 348 (3) FamFG).) to notify the parties involved (Section 348 Para. 3 FamFG), after the Landshut Probate Court declared that it had no local jurisdiction in its decision dated 9 January 2017 and the Erding Probate Court declared that it had no local jurisdiction in its decision dated 30 January 2017.

1. only Section 5 Para. 1 No. 4 FamFG can be considered as the basis for determining jurisdiction. According to this provision, the competent court is determined by the next highest common court if various courts, one of which has jurisdiction for the proceedings, have finally decided in favour of the other court.
have declared that they have no jurisdiction. The term "legally binding declaration of lack of jurisdiction" must be interpreted broadly. It is sufficient for each of the courts involved to have expressly and formally denied its jurisdiction, although it is essential that the decisions denying jurisdiction are communicated to the parties involved (OLG Hamm MDR 2016, 333 f.; OLG Düsseldorf ZEV 2017, 103 ). This was done in the present case, so that the Munich Higher Regional Court, as the next higher court
is locally and materially responsible for determining jurisdiction.

2. however, jurisdiction can only be determined if the referring probate court fulfils its duty to determine the facts establishing jurisdiction in accordance with section 26 FamFG before initiating proceedings.
of the determination procedure pursuant to Section 5 FamFG. This is because, in the interest of expediting the proceedings, the referring court is obliged to determine the facts establishing local jurisdiction ex officio before initiating the determination proceedings pursuant to Section 5 FamFG (OLG Düsseldorf ZEV 2017, 103 ). However, based on the law applicable since 17 August 2015 regarding the local jurisdiction of the probate courts, Section 343 (1) FamFG, a sufficient determination of the facts establishing jurisdiction has not yet been made.

a) According to the old version of Section 343 para. 1 of the German Family Proceedings Act (FamFG), which was in force until 17 August 2015, local jurisdiction was determined by the deceased's place of residence at the time of the inheritance, or alternatively by their place of residence. As a result, there was widespread agreement that the duration of the residence - even its
voluntariness and awareness - is irrelevant, therefore the place of residence at the time of the inheritance regularly coincides with the place of death (OLG Düsseldorf ZEV 2017,103,;Keidel/Zimmermann, FamFG, 18th ed. , Section 343 para. 45).

b) The European Succession Regulation (EuErbVO), which came into force on 17 August 2015, on the other hand, provides for the habitual residence of the deceased at the time of death as a fundamental characteristic for the connection of jurisdiction in matters of succession (Art. 4 EuErbVO). Accordingly
Section 343 (1) FamFG (new version) now stipulates that the court in whose district the deceased had their habitual residence at the time of their death has local jurisdiction. 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 synchronise with Art. 4 of the EU Succession Regulation.
(cf. 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 conditions must be made, also taking into account the duration and regularity of visits, the particularly close ties to a country, language skills, the
Situation of the assets (see Palandt/Thorn 76th edition Art 21 EuErbVO; Köhler in: Gierl/Köhler/Kroiß/Wilsch „Internationales Erbrecht“ 2nd edition Part 1 Section 4 para. 13 et seq.; Dörner ZEV 2012, 505; Dutta FamRZ 2013, 4). It follows from this that, with regard to „habitual residence“, the actual place of
The centre of vital interests of a natural person is to be understood as the centre of life of a natural person, which is to be determined by means of an overall assessment of the circumstances of the deceased in the years prior to his death and at the time of death (Köhler in: Gierl/Köhler/Kroiß/Wilsch Internationales Erbrecht 2nd edition Part 1 § 4 para. 13; Keidel/Zimmermann loc. cit. § 343 para. 62; § 34 IntErbRVG para. 2 et seq.). In order to determine the habitual residence of the testator, a subjective element, namely a will to remain, is required in addition to the objective element of actual residence (Keidel/Zimmermann loc. cit. § 343 para. 67; Köhler loc. cit. para. 14). Otherwise, questions of forced or involuntary residence cannot be satisfactorily clarified. Furthermore, the substantive inheritance law of relatives could otherwise be manipulated (Keidel/Zimmermann loc. cit. para. 67). Although a legal intention to make the place of residence the centre of living conditions is not required (see Dörner ZEV 2016,505 ), the testator must be capable of forming their own will (Köhler loc. cit. para. 16). If they lose their legal capacity, they can no longer change their habitual residence (Zimmer/Oppermann ZEV 2016, 126 ). Therefore, the last habitual residence at the time of the testator's last legal capacity must be taken into account (cf.
Zimmer/Oppermann loc. cit.), which may also affect the recovery of a
expert opinion on the question of legal capacity when establishing the deceased's habitual residence, which is decisive for determining local jurisdiction (see Zimmer/Oppermann loc. cit. fn. 19). Since residence is something factual, legal representation
of the testator in connection with the establishment of a habitual residence is not permissible; otherwise, a guardian could determine the applicable inheritance law (Keidel/Zimmermann loc. cit. para. 67).

c) On the basis of these principles, which also apply in the context of Section 343 (1) FamFG (see above), the connecting factors for determining the competent probate court have not yet been conclusively clarified by the Senate.

aa) If the deceased's last place of residence is a nursing home, this can in principle be the deceased's „habitual residence“ within the meaning of Section 343 para. 1 FamFG if, at the time of the inheritance, the deceased resided there according to his will because his state of health required medical and nursing care for an indefinite period of time and there was nothing to suggest that the deceased should have considered returning to the home he last lived in at another location (OLG Düsseldorf FamRZ 2013, 807 ;
Keidel/Zimmermann, loc. cit. para. 68).

bb) The Senate is currently unable to assess whether these requirements are met here, as the referring court has not determined the reason for the deceased's admission to a nursing home just three weeks before his death. These enquiries must therefore be made. In particular, it should be noted that,
whether the testator still had legal capacity at the time of the move and whether it was in accordance with their wishes to move to a care home. In doing so, the probate court must make use of all sources of information available to it (statement from the care home, consultation with relatives, medical reports, etc.).
etc., if necessary also obtain an expert opinion).