OLG Düsseldorf, decision of 20 November 2020 - 3 Wx 138/20
(Usual stay for „Mallorca pensioners“)
Central standards: Art. 4, 21 EU Succession Regulation
For the reasons:
I.
1 The deceased left behind the parties to 1, his mother, the parties to 2 and 3, his siblings, and the party to 4, with whom he had entered into a civil partnership on 24 August 2015. The testator and the party to 4 lived under the statutory matrimonial property regime of community of accrued gains, modified in accordance with a notarised civil partnership agreement concluded on 27 August 2015.
2 At the time the civil partnership was established, the testator and the party re 4 were no longer employed. The testator financed his living expenses with income from letting and leasing and interest income; he lived with the party re 4 in a house owned by him in Du. - referred to as a „villa“ by the parties to the proceedings. At the beginning of December 2015, the testator sold the aforementioned property and then moved into a property in Gran Canaria, also owned by him, together with party no. 4. The property on Gran Canaria was a bungalow in a bungalow complex, which included other properties used as holiday flats. On 18 March 2016, 15 April 2016, 29 September 2016 and 30 September 2016, the testator acquired further properties in the bungalow complex on Gran Canaria. He had various renovation works carried out and moved several times within the bungalow complex together with party 4. The testator granted a right of residence to one of the bungalows to party 1 and her partner, who had previously lived regularly on the Spanish mainland; the testator rented out the other bungalows.
3 Even after December 2015, the deceased repeatedly stayed in Germany and then lived in a 2-room flat rented from an acquaintance in Dü. ... . He had been registered at the address ... in Du... since 1 March 2016. This address is the residential address of the parties to 1. Some of the deceased's furniture was located in the flat in Dü.; he stored business files and photos in the basement of the house ... in Du.
4 The deceased received medical treatment in Germany and also had private health insurance in Germany. During his stays in Germany, he regularly met with friends and family members of party 4; he also volunteered for the Duisburg Citizens' Association in 2016 and 2017. The deceased was liable for tax in Germany; he paid tax on the rental income from the Spanish properties in Spain. He had bank accounts at two banks in Du., at the Frankfurt branch of a Dutch bank and an account at the D. Bank in Gran Canaria for the settlement of income and expenses in connection with the properties in Gran Canaria. The deceased had no registered address in Spain. He did not speak Spanish; he attended a language course a total of five times. The deceased died in Gran Canaria.
5 Based on the statutory succession and on submission of written powers of attorney from the parties 1 to 4, the lawyer ... initially applied on 29 September 2017 for the issue of a European Certificate of Succession, which identifies the party 1 as heir to 1/8, the parties 2 and 3 as heirs to 1/16 each and the party 4 as heir to . On 13 December 2017, party 4 personally applied for a joint certificate of inheritance to be issued on the record of the probate court, which identifies parties 1 to 4 as heirs to the aforementioned shares.
6 The probate court granted the application of party 4 on the same day.
7 On 24 May 2019, the parties 1 to 3 applied for the revocation of the certificate of inheritance dated 13 December 2017 in a written submission by their legal representative, as the probate court did not have international jurisdiction. They argued that the deceased and party 4 had had their habitual residence in Gran Canaria since December 2015. Immediately before his departure from Germany, the testator had declared to their authorised representative that he was leaving Germany for good. The testator and the party re 4 had given the residential address of the party re 1 in Du. to the residents„ registration office as their registration address without the knowledge of the party re 1; she had merely authorised them to use her residential address in Germany as their postal address. The parties re 1 to 3 justified their view of the final transfer of the deceased's centre of life to Spain by stating that the deceased had lived and resided permanently in Gran Canaria after giving up his professional activity in Germany, giving up his residence in Du. and selling the “villa". The testator had invested almost all of his cash assets in property in Spain. He had stated his Spanish address in deeds, invoices and contracts. The relocation of party 1 and her partner to Gran Canaria had also taken place at the instigation of the testator; party 1, the testator and party 4 had then been together in Gran Canaria almost every day.
8 They also argued that the lawyer ..., a friend of the deceased and of the party re 4, had informed the party re 1 that the certificate of inheritance could only be applied for at Duisburg Local Court; the party re 1 had relied on this; there had been no contact at all with the parties re 2 and 3. In Spain, other inheritance quotas would apply and the party re 4 refused to recognise this.
9 Finally, they took the view that the certificate of inheritance should in any case be withdrawn because the Duisburg Local Court did not have local jurisdiction. If it was assumed that the testator had lived in Germany, then this would have been in Dü. where the flat he had rented was located.
10 The fourth party opposed the application and argued that the bungalow which the testator and he had occupied in Spain was a 60 square metre property in a holiday complex; none of the holiday flats were suitable for permanent residence. They had moved there to see whether they would stay in Spain and then buy a suitable house there or whether they would return to Germany. In Spain, the testator had only stayed as a tourist and saw himself as such; he had shown no interest in integrating. He had only wanted to spend his holidays and leisure time as a pensioner in Spain and had acquired the various properties as an investment. In 2016 and 2017, the testator flew to Germany every 2 to 3 months and then spent between 3 and 7 weeks in Germany, depending on which medical appointments, business appointments or visits to the authorities were due. Overall, the duration of the stay in Germany and Spain was roughly the same in 2016 and 2017. Due to the small size of the bungalow on Gran Canaria, the testator and he had been looking for a larger flat in Germany while the testator A. was still alive. He believes that by concluding the civil partnership agreement in Du., the testator had also made an implied choice of law in favour of German inheritance law.
11 The probate court dismissed the application for confiscation filed by the parties 1 to 3 by order dated 9 June 2020. It had international jurisdiction to issue the certificate of inheritance in accordance with Article 4 of the EU Succession Regulation, as the deceased had had his last habitual residence in the district of the Local Court of Duisburg. After an overall assessment of the deceased's circumstances in the years prior to his death and at the time of his death, it could not be established that the deceased had last had his habitual residence in Spain. It is true that from 2016 until his death, the testator had spent the vast majority of his time in Spain and had lived there in one of his properties; on the other hand, he had still owned property in Germany, had regularly travelled to Germany for medical appointments and had then lived in the flat in Dü. On the other hand, he had not registered a residence in Spain, had no in-depth knowledge of the local language and had not taken personal belongings to Spain. In addition, the deceased had been subject to unlimited tax liability in Germany and had demonstrated his commitment to German law by concluding the civil partnership agreement with party 4 in August 2015. The testator had not had any social contacts in Gran Canaria other than with the party re 1; on the other hand, he had continued to maintain his social contacts in Du. and had continued his voluntary work for the Duisburg Citizens' Association. According to recital 24 of Regulation (EU) No. 650/2012 of the European Parliament and of the Council of 4 July 2012, the German nationality of the deceased could also be taken into account, which also argued against Spain as the habitual residence within the meaning of Article 4 of the Regulation. The local jurisdiction of the Local Court of Duisburg to issue the certificate of inheritance follows from Section 343 (2) FamFG, according to which the last habitual residence in Germany - in Du. - had to be taken into account.
12 The parties 1 to 3 appeal against the rejection of their application for confiscation with their appeal of 29 June 2020, repeating and expanding on their submissions at first instance.
13 The probate court did not remedy the appeal and referred the matter to the Düsseldorf Higher Regional Court for a decision in a further order dated 9 July 2020.
14 The parties re 1 to 3 additionally substantiate their appeal to the Senate by arguing that their hearing prior to the issue of the certificate of inheritance was procedurally incorrect.
15 The party re 4 has opposed the appeal. He defends the contested decision as correct and argues in more detail that they had already decided to buy a new house in Germany some time before the testator's death.
16 For further details, please refer to the contents of the case file.
II.
17 The appeal of the parties 1 to 3 is admissible as a time-limited appeal in accordance with §§ 58 et seq. FamFG and is also admissible in other respects. It has been referred to the Senate for a decision as a result of the probate court's decision not to dismiss the appeal in a further order dated 9 July 2020.
18 It is unsuccessful on the merits.
19 The probate court was right to reject the application of the parties 1 to 3 to withdraw the certificate of inheritance dated 13 December 2017. Contrary to the opinion expressed by the parties 1 to 3, the certificate of inheritance is not to be withdrawn as incorrect due to the lack of jurisdiction of the Local Court of Duisburg in international or local terms. The additional objection raised in the appeal proceedings of a failure to hold a hearing is equally unfounded.
20 Pursuant to Section 2361 sentence 1 BGB, a certificate of inheritance must be cancelled if it is incorrect. The incorrectness necessitating cancellation may be based on circumstances according to which the certificate of inheritance should not have been issued originally, or on circumstances which mean that the requirements for its issue no longer exist. Withdrawal must be ordered if the facts necessary to substantiate the application for the certificate of inheritance can no longer be considered established because the probate court's conviction of the testified inheritance right required pursuant to Section 2359 BGB has been shaken beyond a mere doubt (OLG Cologne FamRZ 2003, 1784 with further evidence; BGH NJW 1963, 1972; BeckOGK/Neukirchen, Status: 1. February 2020, Section 2361 BGB para. 9; Keidel/Sternal, FamFG, 19th edition 2017, Section 29 para. 66). The incorrectness can arise from the provisions of substantive law or it can also be of a procedural/formal nature. In the latter case, it applies restrictively that the revocation of a substantively correct certificate of inheritance is only to be ordered in serious cases; the issuing of a certificate of inheritance in the case of international lack of jurisdiction of the probate court is recognised as a notable procedural error in this context (see Keidel/Zimmermann, loc. cit., Section 353 para. 3; Palandt-Weidlich, BGB, 76th ed. 2017, Section 2361 para. 3; in each case with further evidence). Whether the lack of local jurisdiction of the issuing court also justifies the cancellation of a certificate of inheritance has been questioned in case law with regard to the provision in Section 2 Para. 3 FamFG (OLG Cologne FamRZ 2015, 1651; negative: Keidel/Sternal, loc. cit., Section 2 para. 36 a; MüKoFamFG/Papst, 3rd ed. 2018, Section 2 para. 50, with reference also to Section 65 Para. 4 FamFG). The latter issue can be left open here, as the conviction that the certificate of inheritance dated 13 December 2017 is correct has not been shaken to such an extent that the requirements for its issue can no longer be considered proven. Any doubts regarding international or local jurisdiction are not sufficient for a cancellation.
21 The deceased died on ... in Gran Canaria, Spain. Pursuant to Art. 83 para. 1 of the EU Succession Regulation, the EU Succession Regulation, which entered into force on 17 August 2015, is therefore applicable. In inheritance matters with a foreign EU connection, international jurisdiction is governed by Art. 4 et seq. EU Succession Regulation. According to the basic rule of Art. 4 EU Succession Regulation - for one of the special circumstances of Art. 5 et seq. EuErbVO is not evident here - the courts of the Member State in whose territory the deceased had his habitual residence at the time of his death have jurisdiction for decisions in inheritance matters for the entire estate.
22 In this context, the last habitual residence is to be determined as follows (see case law: ECJ NJW 2020, 2947 ff.; OLG Hamm ZEV 2020, 634 ff.; KG FGPrax 2016, 181 f.; see also MüKoFamFG/Grziwotz, loc. cit, § 343 para. 14; MüKoBGB/Dutta, 8th ed. 2020, Art. 4 EuErbVO para. 3; all with further evidence): an overall assessment of the deceased's circumstances must be made using recitals no. 23 and 24 to the EuErbVO. In particular, the duration and regularity of the deceased's residence in the respective member state, his or her ties to a state, language skills, the location of the assets, his or her personal, social and family integration are important; according to sentence 5 of recital 24, the nationality of the deceased is an auxiliary criterion. In some cases, which may be of significance in cases of forced or involuntary residence, a subjective element is also required in addition to the objective element of actual residence, namely a will to reside or remain (see OLG Hamm, loc. cit.; Keidel/Zimmermann, loc. cit., Section 343 para. 67 with further references; see also MüKoFamFG/Grziwotz, loc. cit., Section 343 para. 19). The probate court must examine the question of its international jurisdiction ex officio and determine the facts giving rise to jurisdiction (Senate FGPrax 2017, 36; OLG Munich FGPRax 2017, 134; Keidel/Zimmermann, loc. cit., Section 343 para. 60).
23 In accordance with the aforementioned principles and on the basis of the content of the case file and the submissions of the parties to the proceedings, the Senate's conviction that the certificate of inheritance of 13 December 2017 is correct is not shaken to such an extent that a certificate of inheritance with the same wording would no longer have to be issued by the Local Court of Duisburg; there are no more than mere doubts about international jurisdiction. Rather, in the present case, a vast majority of circumstances indicate that the deceased still had his centre of life in Germany in the sense described above, although he had predominantly resided in Spain until his death - according to the findings of the Local Court in the contested decision. In the contested decision, the Local Court presented the relevant aspects in detail and convincingly assessed them, to which the Senate refers in order to avoid repetition. In addition, the Senate notes that the fact of renting a flat in Dü. ... also confirms the testator's attachment to Germany and his continued integration in Germany despite his stays in Spain. In this way, the testator wanted to keep open the possibility of travelling to Germany as his home country at any time in order to be able to stay in his own private environment. This clearly distinguishes him from an emigrant who visits Germany and stays in Germany as a guest in a hotel at predetermined times - at a significantly higher cost - or as a guest of acquaintances or family members.
24 It remains open whether the testator, in accordance with the submissions of the parties 1 to 3, declared to their authorised representative before moving to Spain that he would leave Germany permanently. This is because the other undisputed circumstances show that the testator did not realise such a plan. For example, he continued to have his registration address in Du. - possibly contrary to the agreement made with the first party - and refrained from officially registering his place of residence in Spain. In addition, he also spent time in Germany, in particular to maintain his social contacts and to continue his voluntary work in the Duisburg Citizens' Association. This cannot be reconciled with a definitive intention to leave. Finally, the fourth party had already argued at first instance, without contradiction, that the testator and he had already been looking for a larger flat in Germany during the lifetime of the testator A.
25 Finally, the motives and background for the relocation of the parties to 1 to Gran Canaria can also be left open. If the move took place at the instigation of the testator, this alone proves the testator's attachment to party 1 and not his integration in Spain.
26 Accordingly, if the conviction that the deceased had his habitual residence in Germany at the time of his death within the meaning of Art. 4 of the European Succession Regulation is not sufficiently shaken, the jurisdiction for issuing the certificate of inheritance is based on § 343 Para. 2 FamFG. The objections raised by the parties re 1 to 3 in this respect are not valid. This applies irrespective of the question of whether the cancellation of a certificate of inheritance as incorrect due to a lack of local jurisdiction of the issuing court can be considered at all (see above). The testator undoubtedly had his last actual habitual residence in the district of the Local Court of Duisburg before his move to Spain in 2015; a habitual residence in the flat rented after his departure in Dü. ..., i.e. in the district of the Local Court of Düsseldorf, after his departure. As already correctly stated by the KG (FGPrax 2016, 181 f.), the fact that, on the one hand, in Section 343 (2) FamFG, the jurisdiction of the court of the last habitual residence in Germany is based precisely on the fact that the deceased did not (or no longer) have a habitual residence in Germany, but, on the other hand, it is to be assumed that the deceased had a habitual residence in Germany within the meaning of Art. 4 of the Regulation on Succession and Inheritance (EuErbVO), is only an apparent contradiction. Art. 4 EuERbVO only regulates the international jurisdiction of the courts of the member state in which the deceased had his last habitual residence; local jurisdiction is not regulated, not even indirectly. Rather, the regulation of local jurisdiction remains reserved to national law, cf. also Art. 2 EuERbVO, and is regulated in Germany in Section 343 FamFG (KG, loc. cit.; MüKoFamFG/Rauscher, 3rd ed. 2019, Art. 4 EuErbVO para. 6).
27 Finally, it can be left open whether the proceedings of the probate court prior to issuing the certificate of inheritance of 13 December 2017 are objectionable, as a separate hearing of the parties 1 to 3 on the application for a certificate of inheritance submitted by party 4 on 13 December 2017 was not held. A possible violation of the requirement of a fair hearing, Art. 103 Para. 1 GG, and of the obligation arising from Section 26 FamFG to clarify and investigate the facts of the case ex officio, which may also require the parties to the proceedings to be heard in accordance with Section 34 FamFG (see Keidel/Sternal, FamFG, loc. cit, § Section 26 para. 16 et seq. and para. 38), has in any case been remedied, as the parties 1 to 3 have made comprehensive submissions in the proceedings on the revocation of the certificate of inheritance, both in factual and legal terms, and their submissions have already been analysed in detail by the probate court. However, if any procedural error has been remedied, the revocation of the certificate of inheritance dated 13 December 2017 due to an inaccuracy for serious procedural reasons (see above) is in no way justified.
28 It is not apparent that the certificate of inheritance issued on 13 December 2017 in accordance with German inheritance law is incorrect in terms of substantive law (see Art. 21 para. 1 EU Succession Regulation, Sections 1925 para. 1 and 3, 1931 para. 1 and 3, 1371 BGB) and is also not asserted by the parties 1 to 3.