OLG Munich, decision of 03.09.2019 - 31 Wx 313/18

(Waiver of inheritance in the event of succession before the EuErbVO comes into force)

Central standards: Art. 11, Art. 25 EGBGB

Official guidelines:

1. in cases of inheritance prior to 17 August 2015, the declaration that the inheritance will be waived is made effectively to the competent German probate court if German inheritance law is applicable as the law governing the succession pursuant to Art. 25 para. 1 EGBGB.

2. this question is not a question of form within the meaning of Art. 11 para. 1 EGBGB, but a question of content, so that the law of succession is decisive (following OLG Schleswig FGPrax 2015, 130 ff).

3. if the probate court refuses to issue a certificate of inheritance to a legal heir of the 2nd order because it is of the opinion that the legal heirs of the 1st order have not effectively renounced the inheritance, they are not entitled to appeal because there is no direct impairment of rights.

For the reasons:

1 The admissible appeal of the party re 5 remains unsuccessful on the merits. The probate court correctly came to the conclusion that the requirements for granting the certificate of inheritance applied for by the appellant were not met.

2 The appeal of the third party was inadmissible and therefore had to be dismissed.

I.

3 The deceased was a German national and died on 3 June 2014 in .../Landkreis .... He was married and left behind 3 children; his last place of residence was in Switzerland.

4 At the time of the inheritance, the deceased's mother, who had died in the meantime, and his father, the complainant (= party 5), who inherited the deceased's mother alone, were also still alive.

5 Both the wife and the children of the deceased, represented in part by their mother as legal representative, declared the renunciation of the inheritance in declarations to the District Court of .../Switzerland. Bankruptcy proceedings were subsequently opened against the deceased's estate in Switzerland in accordance with Swiss law. The declarations of renunciation were requested from the district court of Rosenheim - probate court - by order dated 29 July 2016 and a copy was sent to the district court of .../Switzerland on 11 August 2016.

6 In a notarial deed dated 18 May 2016, the complainant applied for the issue of a joint certificate of inheritance, which identifies him as the heir of his son, who died on 3 June 2014, together with his wife.

7 The probate court rejected this application for a certificate of inheritance and essentially stated that the appellant (and the deceased mother of the deceased) were not appointed as legal heirs, as the bequests declared by the wife and the children were invalid under German law, so that the wife and the children were legal heirs of the deceased and would therefore exclude the appellant and the deceased mother of the deceased from the legal succession.

8 The appeal of the third party (son of the deceased) and the fifth party (father of the deceased) is directed against this.

II.

9 The appeal of the third party is inadmissible, as it is not apparent that the third party has the right to appeal within the meaning of § 59 FamFG.

10 1. pursuant to section 59 (1) FamFG, (only) persons whose own subjective rights are directly infringed by the contested decision are entitled to lodge an appeal, whereby the possibility of an impairment of rights is sufficient in the case of so-called doubly relevant facts (in detail: Krätzschel in: Firsching/Graf Nachlassrecht 11th edition § 33 para. 1 ff).

11 2. taking these principles into account, however, the contested order does not constitute a legal impairment vis-à-vis the third party. The contested order rejects the application for a certificate of inheritance of the party re 5 on the grounds that it is not the party re 5 but the party re 3 (along with other parties) who is the legal heir of the deceased.

12 This decision by the probate court is based on the fact that it considered the declarations of renunciation submitted by the third party, among others, to the Swiss court to be invalid under German law and therefore affirmed the corresponding status of the third party as an heir. However, in the present proceedings for the granting of a certificate of inheritance, which were initiated by the party re 5, the question of the status of the heir of the party re 3 is merely a preliminary question to be examined incidentally, the answer to which does not directly affect the legal position of the party re 3, as the decision of the probate court does not positively establish that the party re 3 is an heir, but rather that the party re 5 has not become an heir. However, this decision does not directly affect the participant's own subjective rights.

III.

13 The appeal by party no. 5 is admissible, but is unsuccessful on the merits.

14 The Senate shares the view of the probate court that the deceased was not inherited by his father, but by his wife and children as legal heirs.

15 To avoid repetition, the Senate first refers to the carefully reasoned decision of the probate court.

16 The following should be added:

17 1. for decedents who died before 17 August 2015, the applicable law of succession is determined by the law of the country to which the decedent belonged at the time of death (Art. 25 EGBGB in the version valid until 17 August 2015).

18 If there is no disposition of property upon death under the applicable German law, succession is determined by law. Upon the death of the testator, the inheritance therefore passes directly and automatically to the heir(s) by operation of law, and the estate passes ipso iure to the heirs (Palandt/Weidlich BGB 78th edition Section 1922 para. 6; Krätzschel in: Firsching/Graf, loc. cit. section 1 para. 1). This so-called vonselbsterwerb basically means that the inheritance is acquired without the heir's knowledge and even against his or her will; acceptance or acceptance of the inheritance is irrelevant. On the other hand, it correlates with the right of the heir to waive the inheritance subject to certain conditions.

19 The waiver of the inheritance is generally made by declaration to the probate court. In accordance with Section 1944 para. 1 BGB, it must be declared within a period of 6 weeks, whereby the period begins at the time at which the heir becomes aware of the claim and the reason for the appeal (Section 1944 para. 2 sentence 1 BGB). Pursuant to Section 1944 para. 3 BGB, the period is 6 months if the testator's last place of residence was only abroad or if the heir is abroad when the period begins (for details see: Krätzschel in: Firsching/Graf, loc. cit. Section 16 para. 4 ff).

20 2. taking these principles into account, the Senate shares the view of the probate court that the heirs of the first order, i.e. the wife (§ 1937 BGB) and the children (§ 1924 BGB), have not effectively renounced the inheritance under the applicable German law, so that they, as legal heirs of the first order, displace the complainant as legal heirs of the second order (§ 1925 para. 1 BGB) from the succession. Accordingly, the appellant is not appointed as an heir and the issue of a certificate of inheritance is out of the question.

21 a) Pursuant to Art. 25 EGBGB in the version valid until 16 August 2015, German inheritance law is applicable to the present inheritance case because the testator was a German citizen at the time of his death. Insofar as it was disputed between the parties in the proceedings before the probate court whether the deceased's wife and his children had effectively renounced the inheritance, only Sections 1944 and 1945 BGB are applicable due to the applicability of German law.

22 aa) The prerequisite for an effective waiver is that a waiver declaration has been submitted to the probate court within the appropriate period and in the appropriate form.

23 The declaration of renunciation itself is a declaration of intent that must be made in the proper form and received by the authorities (BeckOGK/Heinemann BGB Section 1945 marginal no. 9). It is valid if it is submitted to the competent probate court within the deadline.

24 The competent probate court in the present case, as the deceased died before 16 August 2015, is the Local Court of Rosenheim - Probate Court - on the basis of Section 343 (1) FamFG in the version valid until 16 August 2015.

25 No declarations of renunciation were submitted to the Local Court of Rosenheim - Probate Court - by the deceased's wife and children.

26 The fact that such declarations were made to the District Court of .../Switzerland is irrelevant for the assessment of the present inheritance case. It is irrelevant whether Swiss law is also applicable to the present inheritance case pursuant to Art. 90 Swiss IPRG, because the testator had his last place of residence in Switzerland and therefore Swiss law could also be applicable pursuant to the aforementioned provision. The consequence of this circumstance would be a so-called international dissent of decision (Döbereiner in: Firsching/Graf, loc. cit., § 48 para. 56), which, however, would only have the consequence that the Swiss courts dealing with the case would have to judge the present inheritance case according to Swiss law, while the German courts would have to judge the inheritance case according to German law. From the point of view of the German probate court dealing with the case, the Local Court of Rosenheim - Probate Court - only German inheritance law and therefore also Section 1945 BGB applies. However, this expressly requires that the declaration of renunciation must be submitted to the probate court, which is not the case here. The fact that the Local Court of Rosenheim - Probate Court - requested the declarations by court order dated 29 July 2016 and that the declarations were subsequently sent does not, as the Probate Court correctly stated, meet the requirements for submitting a declaration of intent to the Probate Court that requires official receipt. In this respect, reference is made to the contested decision in order to avoid repetition.

27 bb) Insofar as the probate court discussed whether declarations of renunciation could still be submitted in the future because the parties involved may have been in a significant legal error, no decision is required in the present case. The application for a certificate of inheritance by the complainant (party no. 5) for the issue of a certificate of inheritance as sole heir cannot be successful in any case because not all heirs of the first order had effectively disclaimed the inheritance at the time of the Senate's decision.

28 c) Furthermore, the Senate does not have to decide the question of whether the declaration would have complied with the prescribed form if it had been declared to the Local Court of Rosenheim - Probate Court.

29 It is true that it is argued in this respect that, pursuant to Art. 11 para. 1 EGBGB, a legal transaction is also formally valid if it either fulfils the formal requirements of the law that is applicable to the legal relationship forming its subject matter (the so-called commercial law) or fulfils the formal requirements of the law of the state in which it is carried out (the so-called local law) (see: OLG Schleswig, FG Prax 2015, 130/131 with further references). However, this question is not relevant in the present case because the question of to whom the declaration of renunciation is to be made is in any case not a question of form (OLG Schleswig, loc. cit.).

30 The fact that, according to the aforementioned explanations, the deceased was inherited under German substantive inheritance law by his wife and children, who are not appointed as heirs under Swiss law after the inheritance has been waived, is to be accepted for old cases, i.e. those prior to the applicability of the EU Succession Regulation (cf. Döbereiner in: Firsching/Graf, loc. cit. para. 63).

31 For the aforementioned reasons, the appeal is unsuccessful on the merits; the probate court was right to reject the appellant's application for a certificate of inheritance.