OLG Munich, decision from 24/09/2019 - 31 Wx 326/18
Central standards§ 1371 BGB
(Qualification of § 1371 I BGB for old cases)
Guiding principles:
1. in inheritance cases prior to 17 August 2015 (entry into force of the EU Succession Regulation) in which the law of succession and the property law statute differ, the property law classification of Section 1371 para. 1 BGB adopted by the Federal Court of Justice (ZEV 2015, 409ff) remains applicable.
2. the decision of the ECJ in the Mahnkopf case (ZEV 2018, 205ff) is only binding for the probate courts in proceedings in which the scope of application of the EU Succession Regulation is opened.
3. a certificate of inheritance that was issued prior to the entry into force of the EU Succession Regulation, taking into account the case law of the Federal Court of Justice on the property law qualification of Section 1371 (1) BGB, has therefore not become incorrect and cannot be withdrawn.
Problem:
After the ECJ in its judgement in the Mahnkopf case decided to qualify the matrimonial property quarter of Section 1371 I BGB under inheritance law in the case of statutory spousal inheritance law, the decades-long dispute regarding the qualification has been resolved, at least within the scope of application of the EU Succession Regulation. However, since the BGH qualified Section 1371 I BGB under matrimonial property law in a judgement before the EU Succession Regulation came into force, the question arose as to which qualification should be followed for old cases.
For the reasons:
I.
The childless deceased was a Greek national. She died in B. on ... 2015.
The parties 1 and 2, the siblings of the deceased, apply to have the certificate of inheritance issued by the probate court on 26 February 2018, which names them as heirs to their sister (1/8 each) and the deceased's husband, who died on 10 June 2015 (¾), withdrawn.
This is based on the fact that although the testator was a Greek national, she and her husband had their habitual residence in Germany, from which the probate court had concluded in the certificate of inheritance proceedings that Greek inheritance and German matrimonial property law should be applied to the present case. It therefore increased the husband's inheritance share accordingly in accordance with Sections 1937 (1) and 1371 (1) BGB. Reference is made to the contested decision of the probate court in this respect.
Following the ECJ's decision in the Mahnkopf case (ZEV 2018, 205 ff), the complainants are now of the opinion that the inheritance law qualification of Section 1371 para. 1 BGB adopted by the ECJ should be applied to the present case with the consequence that the certificate of inheritance issued is incorrect and should therefore be revoked.
Instead, a certificate of inheritance was to be issued identifying the appellants as ¼ each and the husband as ½.
The probate court did not revoke the certificate of inheritance issued, essentially relying on the fact that the principles of the ECJ's decision cannot be applied to cases prior to the entry into force of the EU Succession Regulation of 17 August 2015.
II.
The admissible appeals remain unsuccessful on the merits. The probate court correctly came to the conclusion that the requirements for the cancellation of the granted certificate of inheritance in accordance with Section 2361 BGB are not met.
1. a certificate of inheritance must be cancelled if it is found to be incorrect after it has been issued. The certificate of inheritance is incorrect if the requirements for its issue were either not originally met or have subsequently ceased to exist. When making its decision, the probate court must put itself in the same position as if it had to issue the certificate of inheritance for the first time (BayObLGZ 1980, 72 (74); Gierl in: Burandt/Rojahn, 3rd edition , BGB § 2361 para. 4; Keidel/Zimmermann FamFG, 19th edition § 353 para. 3; Krätzschel in: Firsching/Graf, Nachlassrecht, 11th edition , Section 39 para. 2).
2 However, the requirements for the incorrectness of the certificate of inheritance are not met in the present case, because the BGH has not changed its case law on the qualification of § 1371 para. 1 BGB and the Senate follows this case law (2. b aa)) and the case law of the ECJ does not bind the Senate in the present case (2. b bb)).
It is therefore not necessary to decide in the present case whether the incorrectness of the certificate of inheritance can also result from a subsequent change in supreme court case law, which is supported by the fact that the certificate of inheritance is not subject to substantive res judicata (Krätzschel, loc. cit. para. 1).
a) The probate court correctly assumed that in the present case Greek inheritance law is applicable, Art. 25 para. 1 EGBGB (in the version valid until 16 August 2015), because the deceased was a Greek national and died before the EuErbVO came into force. In accordance with the Greek Civil Code, the surviving spouse will inherit ½ of the estate alongside relatives of the 2nd order.
b) At the same time, German property law applies, because the spouses had their habitual residence in Germany at the time of the marriage (see Döbereiner in: Firsching/Graf, loc. cit. § 48 para. 54 (Greece)). Therefore, the surviving spouse is entitled to equalisation of the gain by increasing the statutory inheritance share by ¼, i.e. a total share of ¾, in addition to his or her statutory inheritance share of ½ in accordance with Section 1371 (1) BGB.
aa) With regard to this question, the Senate shares the view of the BGH (ZEV 2015, 409 et seq.), according to which the realisation of the lump-sum gain upon dissolution of the marriage due to the death of a spouse is to be qualified under matrimonial property law pursuant to Section 1371 BGB. This follows from the assumption, convincingly substantiated by the BGH, that it is the The purpose of the provision is to establish the matrimonial property regime as a special arrangement of the spouses' assets during and on the basis of the marriage, but not to give the longest-living person a share in the deceased's assets by virtue of his or her close relationship with the deceased (BGH, loc. cit. p. 411 para. 25). In particular, the Senate shares the view of the Federal Court of Justice that Section 1371 para. 1 of the German Civil Code The aim is to avoid difficulties that can arise after the death of a spouse if, on the one hand, the heirs are not aware of the existence of the initial and final assets and, on the other hand, the marriage may have taken place some time ago and it is therefore no longer (easy) to make the necessary determinations regarding the existence of the initial and final assets. In these cases, the legislator has opted for a flat-rate increase in the statutory inheritance quota, which does not alter the matrimonial property law nature of the provision (BGH, loc. cit.).
bb) The decision of the ECJ in the Mahnkopf case (ECJ ZEV 2018, 205) does not justify a different assessment in the present proceedings. Insofar as the ECJ qualifies the provision of Section 1371 para. 1 BGB under inheritance law in order to subject it to the EU Succession Regulation and to facilitate the handling of the European Certificate of Succession, this argument cannot apply in the present case because the The issue of an ENZ is out of the question here; the EU Succession Regulation also plays no role in the present proceedings. As the scope of application of the EU Succession Regulation has not been opened up, the Senate is not bound by the case law of the ECJ. Rather, it follows the case law of the BGH for the reasons outlined above.
Consequently, the certificate of inheritance issued is not incorrect and its cancellation is out of the question.
III.
The decision on costs is based on Section 84 FamFG.
Since the appellants are contesting the certificate of inheritance, which identifies party 4 as heir to 3/4, the business value of the appeal proceedings was to be set at 3/4 of the pure value of the estate in accordance with sections 61, 40 and 36 of the German Notarial Code (GNotKG) in line with the economic interest of the appellants in a successful decision. According to the findings of the Local Court, the value of the estate at the time of the inheritance was € 330,000.
IV.
The requirements for the admission of the appeal on points of law are not met.
The question to be decided has been clarified by the highest court in the decision of the Federal Court of Justice ZEV 2015, 409 ff; since the Senate shares this view and does not decide differently, the requirements of Section 70 Para. 2 Sentence 1 FamFG are not met (Keidel/Meyer-Holz FamFG, loc. cit., Section 70 marginal no. 22).
The Senate's decision does not deviate from the case law of the ECJ, so that it would not have to allow an appeal on points of law from this perspective either (Section 70 Para. 2 Sentence 1 No. 2 Alt. 2, see Keidel/Meyer-Holz, loc. cit., 29). The decisive factor in this respect is that the decision of the ECJ in the Mahnkopf case (ECJ ZEV 2018, 205) concerns a situation that falls under the scope of application of the EU Succession Regulation, which is not the case here.