Berlin Higher Regional Court, decision of 25 April 2017, 6 W 61/16
Central standards: §§ 133, 2018 BGB
(Acting under false law)
Remark:
If a will is drawn up "under false law", the true intention of the testator must be ascertained in accordance with §§ 133, 2018 of the German Civil Code (BGB).
For the reasons:
I.
1 The testator died on August 20, 2012, in Italy (South Tyrol). His marriage to Party 1 produced Parties 2 and 3. He also had one child born out of wedlock – Party 4. His estate consisted primarily of a plot of land and the single-family home located thereon, which was occupied by the couple, in Italy. There are no assets in Germany. The couple were both German citizens and were married under the statutory property regime of community of accrued gains.
2 On April 23, 2004 (page 2 of the will file at the Schöneberg Local Court, file number 69 IV 371/14), the testator executed a handwritten and signed will in which he stipulated that his wife should receive "one-quarter of the disposable portion" of his estate. He further stipulated that she should receive a right of residence and use of the house and garden on the property. The household effects were not to be divided; his wife was to have sole control over all household effects. In the event that his wife should predecease him, he stipulated that the parties referred to as 2) and 3) should inherit "one-third of the disposable portion" of his estate in equal shares. They were to have control over the jointly owned household effects and a lifelong right of residence in the house and garden on the property.
3 He had kept the will together with an article from the South Tyrolean German-language newspaper “Die Dolomiten” entitled “The Last Will” dated February 4, 2004. This article contained explanations of Italian inheritance law and included a table illustrating the testamentary succession, showing the “compulsory share” allocated to the spouse, children, and/or other relatives, depending on the existence of heirs entitled to a compulsory share, and the remaining “disposable share.” The table shows that if there is a spouse and several children, the spouse is entitled to a compulsory share of ¼ and the children a total of ½, leaving a “disposable share” of ¼. Conversely, if there are several children without a spouse, they are entitled to a compulsory share of 2/3, leaving a “disposable share” of 1/3 (page 12 of the file).
4 Parties 1 to 3 applied for a joint certificate of inheritance by notarial deed dated March 3, 2015, designating Party 1 as heir to ¾ and Parties 2 to 4 as heirs to one-twelfth each. They argued that the testator intended to favor Party 1 by granting him the remaining ¾ share. Since he did not dispose of the remaining ¾ share, but German inheritance law is applicable, Party 1 is also entitled to her statutory share of the inheritance, totaling ½, as determined under German law, taking into account the increase due to the community of accrued gains (§ 1931 para. 1, 3 in conjunction with § 1371 para. 1 of the German Civil Code). The remaining ¾ share would have to be divided among the children. Party 4 concurred with this view.
5 Following a judicial suggestion, the second party involved submitted a subsidiary request on March 4, 2016, for a certificate of inheritance to be issued, identifying her mother as heir to ½ and her descendants as heirs to 1/6 each.
6 The probate court rejected the application for a certificate of inheritance dated March 2, 2015, for the reasons stated in its notice of December 3, 2015, that testamentary succession had taken effect. Since the testator had mistakenly assumed that Italian law applied, the wife receives, in addition to her statutory share of one-quarter, a further quarter. Section 1371 of the German Civil Code (BGB) does not apply.
7 The decision was served on the second party on March 31, 2016. With the appeal filed on April 13, 2016, by her authorized notary, she continues to pursue the rejected main application. Following the Senate's indication that it considers the appeal against the main application unfounded, but that the alternative application appears promising, she now also pursues the first-instance alternative application in the appeal proceedings by letter from her authorized notary dated November 29, 2016.
II.
8 The appeal, which was filed in due form and time and is also admissible in all other respects pursuant to Sections 58 et seq. of the Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction (FamFG), is successful with regard to the subsidiary claim; otherwise, it is unfounded.
9 1. International jurisdiction is established. Pursuant to Section 105 of the German Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction (FamFG), German courts have jurisdiction in probate proceedings if a German court has local jurisdiction. Pursuant to Section 343 Paragraph 2 Sentence 1 FamFG (in the version applicable here, valid until August 17, 2015), the Schöneberg Local Court has local jurisdiction if – as in this case – the deceased was German and had neither residence nor habitual abode in Germany at the time of death. Therefore, the fact that no assets of the estate are located in Germany does not preclude jurisdiction.
10 2. According to Article 25 Paragraph 1 of the Introductory Act to the German Civil Code (EGBGB) as it stood until August 17, 2015, the succession is governed by German law, since the deceased was a German national. This provision, which has since been repealed, is still applicable because the deceased died before August 17, 2015. While the testator's dispositions are based on Italian law, which could raise the question of implied choice of law, Article 46 Paragraph 2 of the Italian Law No. 128 of May 31, 1995, on the Reform of the Italian Private International Law System (reprinted in Ferid/Firsching/Dörner/Hausmann, International Inheritance Law, Italy, Texts A II) – IPRG – allows the testator to subject the succession to their entire estate to the law of the state in which they have their habitual residence. However, according to the wording and prevailing opinion, an express declaration in the form of a will is required for this (see Ferid/Firsching/Dörner/Hausmann, Internationales Erbrecht, Italien, Grdz. C para. 60). Such an express declaration is lacking here, so that even under Italian private international law, German law would apply, since, according to Art. 46 para. 1 PILA, the latter generally links inheritance to nationality (ibid., para. 36). Therefore, there is no connection between the applicable law of succession and that of Germany.
11 3. The testator executed a will that is formally valid under German law pursuant to Section 2247 of the German Civil Code (BGB). The interpretation of the will reveals that the testator appointed his wife as co-heir to one-half of his estate and his children as co-heirs to the other half in equal shares.
12 This declaration is logically contained in the will. While he explicitly stipulated only that his wife should receive "the available portion of ¼," by using the terminology from the newspaper article on Italian inheritance law and by disposing of the remaining portion of one-quarter (Article 542, paragraph 2 of the Italian Civil Code – CC –, reprinted in the text BI), which, according to this article, is the only portion available when a spouse and several children are present, the testator logically expressed that he had already anticipated his wife and children inheriting their "compulsory shares" as specified in the article – shares which, according to Articles 536 et seq. CC, are legally reserved ("riservati") – and therefore only expressly disposed of what was available ("disponibile"), namely the remaining quarter. This prior understanding and his intent based upon it are confirmed by the subsequent provision made for the event of his simultaneous death. There, too, he expressly allocated only the one third that is available in the case of inheritance by several children (Art. 537 para. 2 CC).
13 The testator's understanding of the newspaper article, based on this interpretation, regarding the unalterable shares of his legal heirs and the completion of the inheritance quotas through the allocation of the disposable portion, must be considered and is decisive according to German principles of interpretation. This is because, according to §§ 133, 2018 of the German Civil Code (BGB), the testator's true intention must be ascertained, and one should not adhere to the literal meaning of the expression. In cases of differing interpretations, the one that achieves the desired outcome of the disposition is generally to be preferred. It is necessary to examine what the testator intended to convey with his words; only his subjective understanding of the term he used is decisive (cf. Palandt-Weidlich, BGB, 76th edition, § 2084 marginal note 1 with further references). An explicit appointment of heirs is not required in this context. It can be inferred from other provisions by way of interpretation (cf. Leipold in Münchener Kommentar zum BGB, Volume 10, 7th edition 2010, § 2084, marginal note 15 with further references to case law). To determine the content of the individual provisions, the entire content of the will, including all ancillary circumstances, even those outside the will itself, must be considered and evaluated (BGH NJW 1993, 256; Palandt-Weidlich, loc. cit., marginal note 2). This also includes the newspaper article that he attached to his disposition. Since the testator used the terms found therein and complied with the stipulations regarding the disposable parts, his will, although imperfectly, is still sufficiently expressed in the will with respect to the non-disposable parts (cf. on form as a limit to interpretation: Palandt-Weidlich, loc. cit., marginal note 4).
14 This interpretation is not contradicted by the fact that, under German law, the first party would already have been entitled to a total statutory share of 1/2 due to the termination of the community of accrued gains and the increase of her statutory share of the inheritance from 1/4 (§ 1931 para. 1 sentence 1, first alternative of the German Civil Code) by the matrimonial property quarter pursuant to § 1371 para. 1 of the German Civil Code. This does not mean that the statutory share of the inheritance of 1/2 would now increase to 3/4 by the freely disposable and disposed quarter in her favor. This is because the consideration of the formation of a testamentary disposition under the influence of foreign law in the interpretation of the will – referred to, in the case of erroneous application, as so-called... Acting under incorrect law (cf. BayObLGZ 2003, 68-87, para. 65; BayObLGZ 1995, 366-374 para. 40; Palandt-Thorn, loc. cit., para. 12 with further references; Staudinger-Dörner, 2007, Art. 25 EGBGB para. 274) does not, as is rightly argued, mean that foreign law now applies. However, the meaning of the foreign law must be taken into account to determine the testator's intent. An interpretation that merely considers the partial disposition expressly ordered under the influence of Italian law without considering the underlying intent regarding the shares of inheritance based on Italian law, and then supplements this partial disposition with statutory shares of inheritance under German law, would contradict these principles of interpretation. These inheritance shares under German law were precisely not what the testator had in mind when he drew up his will. He did not intend to appoint his wife to a total inheritance share of ¾.
15 The above interpretation does not result in the partial disinheritance of party 1). This is because the statutory shares of inheritance under German law only apply if no prior testamentary disposition has been made (§ 1937 BGB), which is precisely the case here. In any event, she ultimately receives half of the inheritance, the statutory share to which she is entitled under German law in the case of a community of accrued gains.
16 A different interpretation of the will is not warranted even considering that the testator intended to favor his wife by bequeathing her the freely disposable quarter. This intention to favor her was based on the assumed inheritance share of one quarter, which, in his view, she was already entitled to.
17 It is not established whether the testator, had he been aware of and considered the statutory inheritance shares under German law, would have intended to appoint his wife as a more extensive heir, and if so, to what extent. Therefore, an increase in her inheritance share by a further quarter through supplementary interpretation is not possible. According to the parties' submissions, it is expressly not being asserted that he would have appointed her as sole heir had he known that this would have been legally valid under German law.
18 It follows from the foregoing that the main claim pursued by the appeal is unsuccessful on the merits, while the subsidiary claim is justified.
19 4. A decision on costs pursuant to Section 84 of the Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction (FamFG) was not required, as the appeal was not unsuccessful.
20 5. The requirements for granting leave to appeal on points of law pursuant to Section 70 Paragraph 2 of the Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction (FamFG) are not met, as the present case does not concern fundamental legal questions, but rather the interpretation of a will.