In cross-border inheritance cases, the question usually arises as to which domestic law is decisive for the assessment of the facts. The European Succession Regulation (EuErbVO) is based on the last habitual residence of the deceased (Article 4 EuErbVO).
General procedure
The EU Succession Regulation does not explicitly define habitual residence. However, it does provide criteria for the interpretation of the term in its recitals.
In principle, the authority or court dealing with the inheritance case will carry out an overall assessment of the deceased's circumstances in the years prior to his death and at the time of his death in order to determine his habitual residence. The aim of this assessment is to find out to which country the deceased had a closer connection. In practice, the deceased's place of death and habitual residence usually coincide, which is why the courts only start investigations if there are concrete indications of a different habitual residence.
External criteria
The criteria for this assessment are generally the duration and regularity of the stay in the country concerned as well as the associated circumstances and reasons. More precisely, the state in which the Centre of existence of the testator.
On the one hand, the family relationships of the testator. For example, the localisation of the rest of the family with whom the deceased maintained contact until his death may indicate a habitual residence there.
In addition, further social relationship included in the investigations. The place where the spouses or life partners are located, for example, can speak in favour of establishing habitual residence. The deceased's friends or club memberships can also be relevant.
Furthermore, the professional relationships of the deceased must be taken into account. However, it should be noted that it is not sufficient for habitual residence if the deceased had to move abroad temporarily for professional reasons or had to commute frequently.
Other helpful criteria can be the Position of the assets (in particular, the location of the deceased's real estate, accounts and other valuables), as well as the Language skills and Nationality of the testator.
Will of the testator
In addition to the external detectable criteria, the Lead will of the testator may be important for determining habitual residence. However, caution is required with this criterion, as in practice it is usually extremely difficult to establish the will, especially if the testator is deceased.
However, this criterion can be helpful in determining whether a new habitual residence can be established immediately or in the case of a short stay abroad before the death of the testator. In principle, a short stay abroad is sufficient for the affirmation of habitual residence if a will to remain can be proven. Habitual residence must be denied if the deceased has changed residence against or without their will. This is the case, for example, if an incapacitated person is permanently hospitalised abroad or if a soldier is deployed abroad.
Legal fallback option
If, exceptionally, it is clear from the circumstances as a whole that the deceased had a manifestly closer connection with a country other than the country in which the deceased had his habitual residence in accordance with the above criteria, the law of that other country may also be applicable (Article 21(2) of the Regulation). However, this exception can only be assumed in extremely rare cases, for example if the deceased moved abroad shortly before his death and obviously had a closer connection to the country of origin. Furthermore, this exception should not be used if there are mere doubts about habitual residence.
Common problems in practice:
1. persons in need of care
Determining the habitual residence of persons in need of care often leads to problems, especially if they are unable to make independent decisions due to mental impairments. The physical presence of the deceased (especially the location of the care home or hospice) is primarily decisive. In addition, the will of the testator is also decisive here. If this can no longer be formed (such as in the case of dementia patients), it is questionable whether the will of the legal or legal representative is decisive. Some argue that the testator must have the opportunity to form a will to remain and should at least have the opportunity to integrate socially.
In case law, the core problem lies in the question of whether or not legal capacity is a prerequisite. In its ruling of 22 March 2017 - 31 AR 47/17, the Higher Regional Court of Munich stated that, in principle, the last habitual residence at the time of the testator's last legal capacity should be taken into account (paragraph 5 of the judgement). The Higher Regional Court of Celle takes a different view in its ruling of 12 September 2019 - 6 AR 1/19, according to which the testator's legal capacity is not relevant for determining habitual residence (paragraph 6 of the ruling).
2. pensioners abroad (so-called Mallorca pensioners)
It is not uncommon for older people who have lived in one country all their lives and still have a close connection to that country to move to another country for a certain period of time.
A careful examination of the above-mentioned external criteria is particularly important here. This is because a habitual residence in the country from which the deceased moved can also be established in exceptional cases if there was still a particularly close connection within the meaning of Article 21(2) of the EU Succession Regulation in the years before the death and at the time of death. Such a closer connection is to be assumed in particular if the deceased had significantly closer social, cultural, linguistic and economic ties with the country.