OLG Cologne, decision of 5 June 2019 - 2 Wx 142/19

Central standardsArt. 22 para. 2 EuErbVO

(Implied choice of law)

Guiding principle of the editor:

The circumstances surrounding the drawing up of a will can also be taken into account when assuming an implied choice of law in accordance with Article 22(2) of the EU Succession Regulation. Reference to specific provisions of a legal system may be an indication of an implied choice of law.

For the reasons:

Facts of the case

The testator, who was born in Bucharest and also had German citizenship on the basis of a naturalisation certificate dated 13/02/1984, made a will in Romanian before a notary in A on 10/10/2016. According to this translation, it reads:

„The undersigned B C, Romanian citizen, born 24 June 1949 in Bucharest,..., residing in Germany, D, E Street 4,..., married, without descendants, with deceased privileged ascendants, hereby decrees, in the event of my passing:

I leave all my movable and immovable property for my wife B (born F) G, ..., and authorise her as comprehensive legatee pursuant to Art. 1055 BGB, because I am grateful for their affection and care.

This will has been drawn up in accordance with the provisions of Art. 1044 BGB, and represents my last wish...“

The will was opened by the Cologne Local Court on 26 September 2017.

On the same day, the interested party waived the inheritance for every ground of appeal for the minutes of the local court and stated that the estate included a one-half share in a condominium in D (p. 1 et seq.). In a notarised declaration dated 18 May 2018, received by the local court on 25 May 2018 (p. 47), she declared the contestation of the waiver of inheritance on the grounds that she had assumed a high debt burden or over-indebtedness of the estate on the basis of information provided by H and had declared the waiver in ignorance of its significance (p. 48). In a notarial deed dated 20 August 2018 (p. 101 et seq.), the party concerned applied for the granting of a sole certificate of inheritance on the basis of the will; this was submitted to the local court by the authorised representative in the proceedings in a written submission dated 28 September 2018 (p. 91 et seq.).

The judge of the probate court rejected the application for a certificate of inheritance in the order dated 28 January 2019, which was issued on 30 January 2019, on the grounds that the party involved had effectively renounced the inheritance. There were no grounds for contestation, as explained in more detail in the order (p. 113 et seq.).

The party concerned lodged an appeal against this decision by fax dated 15 February 2019 from her legal representative on the same day (p. 121) and substantiated it in a written submission dated 7 March 2019 (p. 130 et seq.). The local court did not uphold the appeal and referred the matter to the Higher Regional Court for a decision.

Admissibility and merits

The appeal is admissible; in particular, it has been lodged in the correct form and within the correct time limit.

The appeal is also successful on the merits. It leads to the annulment of the contested decision and to the determination of the facts justifying the applicant's application for a certificate of inheritance (Section 352 e para. 1 FamFG).

The German probate courts have international jurisdiction in accordance with Art. 4 of the EU Succession Regulation, as the deceased had his habitual residence in Germany and was only in Romania on holiday at the time of his death.

The applicant became the sole heir on the basis of the will of 10 October 2016, which was notarised in Romania.

Romanian law is decisive for the succession in this case. According to Art. 22 para. 1 sentence 2 of the EU Succession Regulation, a person who has several nationalities may choose the law of one of the states to which he or she belongs at the time of the choice of law or at the time of death for the succession. The deceased had both Romanian and German nationality. According to Art. 22 para. 2 of the EU Succession Regulation, the choice of law must are expressly made in a declaration in the form of a disposition of property upon death or arise from the provisions of such a disposition. According to recital 39, it is an indication of a choice of law if the testator has made reference to specific provisions of the law of the state to which he belongs. Accordingly, the testator here implicitly chose the application of Romanian inheritance law in his will. This follows from the circumstances of the drafting, namely the drafting in Romanian before a Romanian notary, in conjunction with the reference to provisions of Romanian law. According to the original Romanian version of the will, reference is made to the provisions of Art. 1044 and Art. 1055 of the Codul Civil („Cod Civil“); the wording „BGB“ chosen by the translator is misleading in this respect.

The declaration of renunciation submitted by the interested party does not preclude her status as heir, as this did not prevent her from accepting the inheritance afterwards, which she declared at least implicitly by contesting the renunciation vis-à-vis the probate court. The interested party, who had her habitual residence in D, was able to submit the declaration of acceptance to the Local Court of Cologne, Art. 4 in conjunction with Art. 13 EuErbVO. Art. 13 EuErbVO. With regard to the form of the declaration of acceptance, there is no need to examine the requirements of Romanian law, as compliance with German law is also sufficient in this respect, since the interested party had her habitual residence in Germany (Art. 28 b) EuErbVO). German formal law has been complied with by the declaration of 19 May 2018 submitted to the probate court and notarised in Germany (Sections 1955, 1945 para. 1 BGB). With regard to the time limit to be observed, the (sole) application of the Romanian law chosen by the testator remains in the absence of a specific provision of the EU Succession Regulation. Accordingly, if no other heir has yet accepted the inheritance, the heir may revoke a waiver as long as the deadline for accepting the inheritance has not yet expired (Art. 1123 para. 1 CC; Süß, Erbrecht in Europa, 3rd ed. 2015, Romania, para. 40). The statutory period for the acceptance of the inheritance is one year and generally begins with the occurrence of the succession, Art. 1103 CC (see Süß loc. cit., para. 36). This one-year period was observed with the declaration of avoidance received by the local court on 25 May 2018, which included a revocation of the waiver and the acceptance of the inheritance.

A decision on costs is not required.