OLG Düsseldorf, decision of 26 October 2018 - I-3 Sa 1/18

Central standardArticle 13 EU Succession Regulation

(Competence for the receipt of declarations pursuant to Article 13 of the EU Succession Regulation)

Remark:

1. in international succession cases (here: testator deceased in Spain), the probate court in whose district the declaring person has his or her habitual residence is competent to receive the declaration of waiver in addition to the court provided for under the law of succession.

(2) Article 13 of the EU Succession Regulation must be interpreted as meaning that a declaration made to a foreign court replaces as equivalent a declaration to be made to a domestic (probate) court under the law of succession.

For the reasons:

II.

6 The Senate is appointed to determine the competent probate court pursuant to Section 5 (1) No. 4, (2) FamFG after the Local Court of Leer declared itself to be without jurisdiction by order of 26 June 2018 and the Local Court of Ratingen refused to take over the matter by order of 5 July 2018. The order of the Local Court of Ratingen fulfils the requirements for the characteristic „legally binding“ within the meaning of Section 5 (1) No. 4 FamFG, because in this respect it is only important that - as here - there is an express denial of jurisdiction made known to the parties (Senate NJW-RR 2013, 520; OLG Brandenburg FamRZ 2011, 56). The jurisdiction of the Higher Regional Court of Düsseldorf to determine jurisdiction arises from Section 5 (2) FamFG. Since the next highest common court is the Federal Court of Justice, jurisdiction is determined by the Higher Regional Court to whose district the court first seised of the matter belongs. In this case, this is the Düsseldorf Higher Regional Court because the declaration of renunciation was first received by the Ratingen Local Court.

*Jurisdiction under Art. 13 of the EU Succession Regulation is not limited to the recording of the declaration of renunciation, but has the consequence that the declaration is replaced before the court provided for under the law governing the succession

7 The jurisdiction of the Local Court of Leer to accept the declaration of renunciation follows from Art. 13 EuErbVO, § 31 S. 1 IntErbRVG. Article 13 of the EU Succession Regulation establishes a special concurrent jurisdiction of the courts of the member state in which a person has their habitual residence to accept the waiver of an inheritance. The jurisdiction under Art. 13 of the Regulation is not limited to the recording of the declaration. Rather, it is intended to facilitate the waiver of an inheritance in international succession cases by enabling the waiving party to make a declaration to the courts of the country of residence. A declaration to this court replaces a declaration to the court provided for under the law governing the succession (see Dutta, in: Münchener Kommentar zum BGB, 7th edition 2018, EuErbVO Art. 13 para. 1; Leipold ZEV 2015, 553). The local jurisdiction of the Local Court of Leer results from Section 31 S. 1 IntErbRVG. According to this, the probate court in whose district the declaring person has their habitual residence has jurisdiction to accept the declaration of renunciation. By way of exception, a referral decision has no binding effect if it has been issued with a denial of the right to be heard.

8 The referral order of the Local Court of Leer dated 26 June 2018 does not have any binding effect (Section 3 (3) sentence 2 FamFG), which would have established the jurisdiction of the Local Court of Remscheid [probably referring to Ratingen, editor's note]. It is true that a referral order is generally binding for the court designated as having jurisdiction, Section 3 (3) sentence 2 FamFG. However, the binding effect does not apply if the referral has been made with a denial of the right to be heard (Article 103 (1) of the Basic Law), i.e. the court has not given the known parties to the proceedings the opportunity to comment prior to the decision, contrary to Section 3 (1) sentence 2 FamFG (Keidel, FamFG, 17th edition, Section 3 para. 37 b). This is the case here because the Local Court of Leer did not hear the party involved before issuing the referral order. The subsequent notification of charges is not sufficient in this respect, so that the referral order has no binding effect.

III.

9 Ancillary decisions are not required.