BGH, decision of 24 February 2021 - IV ZB 33/20

Central standards: Art. 22 para. 2 and 83 para. 2 EU Succession Regulation

(Interpretation of a joint will to determine a choice of law)

Author's note:

The BGH interprets the German joint will as an inheritance contract pursuant to Art. 25 of the EU Succession Regulation within the meaning of EU law.

The admissibility of a joint will is governed by the respective domestic law of the testators. Formal validity is governed by Art. 27 of the EU Succession Regulation, whereby it should be noted that the Hague Convention on the Form of Wills generally takes precedence in accordance with Art. 75 para. 1 subpara. 2 of the EU Succession Regulation.

Pursuant to Art. 25 para. 2 subpara. 2 of the EU Succession Regulation, the material validity and binding effects are based on the fictitious law of succession with which the closest connection exists.

Pursuant to Art. 83 para. 2 in conjunction with Art. 25 para. 3 of the Regulation. Art. 25 para. 3 of the EU Succession Regulation, any law can be chosen that a party could have chosen for their succession in accordance with Art. 22 of the EU Succession Regulation. According to the transitional provision of Art. 83 para. 2 of the EU Succession Regulation, such a choice of law is effective if it fulfils the requirements of Chapter III of the EU Succession Regulation. It includes all of the choice of law provisions of the EU Succession Regulation and thus also a partial choice of the law of the place of establishment pursuant to Art. 25 para. 3 of the EU Succession Regulation (BGH NJW 2019, 3449, 3450).

The judgement deals with the question of whether the existence of an (implied) choice of law is to be answered on the basis of the potentially chosen law or autonomously under EU law.

For the reasons:

1 The parties involved are in dispute as to whether the parties 1 and 2 or the parties 3 to 6 have become co-heirs of the German national Dr H. B. (hereinafter referred to as the deceased), who died on 22 May 2017. The testatrix and her husband, an Austrian national who predeceased her on 19 June 2003, had had their last habitual residence in Bad Reichenhall since 1995. On 25 March 1996, in two separate but essentially identical documents signed and signed by hand, they drew up two documents entitled „Joint Will“ with the following wording:

„I, Dr H.B. ... am a German citizen and have no children.

I, Prof. E.G. ... am an Austrian citizen and my only descendant is my daughter ..., born on ..., who is married and an Austrian citizen.

We have been married since 30.V.95 ...

...

We appoint each other as sole heirs.

II.

After the death of the second of us, joint final heirs shall

a) Mrs G.G. ...

b) Mr U.G. ...

c) Mrs B.G. ...

d) Mrs S.H. ...

(parties 3 to 6)

in equal parts.

III.

The dispositions of property upon death made here (appointment of heirs, appointment of final heirs and bequests) are mutually binding. They can only be cancelled jointly during both our lifetimes. After the death of one of us, the surviving spouse is no longer authorised to amend the testamentary dispositions and bequests.

...“

2 Party no. 4, who died on 10 October 2017, is the testator's sister; parties no. 3, 5 and 6 are the children of party no. 4. In her will dated 7 November 2013, the testator instructed that she bequeath her „house and inventory“ as well as her „cash assets“ to parties no. 1 and 2. In a will dated 1 November 2011, she had already stipulated that party 1 was to receive € 30,000 and various pieces of furniture after her death. In a further handwritten and signed letter from the testator dated 4 December 2013, it states, among other things:

„If my sister or my nephew and nieces have withdrawn money from my accounts, they must be paid back to the heirs. I never authorised them to withdraw money.

This money belongs to the estate...“

3 After the death of the testator, the parties 1 and 2 applied for the issue of a certificate of inheritance stating that they had each become 1/2 heirs. The probate court rejected this application by order dated 19 April 2018, as the succession was based on the joint will drawn up on 25 March 1996. The Higher Regional Court dismissed the appeal. The appeal on points of law by the parties 1 and 2, which was authorised by the Higher Regional Court, is directed against this, with which they continue to pursue their application for a certificate of inheritance.

II.

4 The appeal on points of law, which is admissible and also admissible in other respects, is unsuccessful on the merits.

1. the court of appeal, whose decision was published in ZEV 2021, 28 (with annotation by Bary, loc. cit. 38), stated that the succession after the testator was based on the effective joint will of 25 March 1996, the binding effect of which precluded the testator's later dispositions. The admissibility of the joint will, which constitutes a contract of inheritance under EU law, is governed by the law of succession as laid down in Art. 83 para. 3, 1st alt. in conjunction with Art. 25 para. 2 of the Regulation. Art. 25 para. 2 of Regulation (EU) No. 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (hereinafter: EuErbVO) as the law of the state in which the testator and her husband had their habitual residence. Furthermore, the joint will was to be recognised pursuant to Art. 25 Para. 2 in conjunction with Art. 83 Para. 3 Alt. Art. 83 para. 3 Alt. 1 EuErbVO formally and substantively effective. In this respect, too, German law was to be applied in each case. Finally, the joint will of 25 March 1996 had a binding effect, which was contrary to the testator's later dispositions. German law applied to the binding effect of the joint will. This resulted from a corresponding implied choice of law. According to Art. 25 para. 3 of the EU Succession Regulation, the parties to an inheritance contract within the meaning of EU law could also choose the law that the person or one of the persons whose estate is affected could have chosen under the conditions specified therein for the binding effect of their inheritance contract, including the conditions for its cancellation. The will does not contain an express choice of German law. However, Art. 83 para. 2 of the EU Succession Regulation also covers an implied choice of German law. The existence of an implied choice of law under the EU Succession Regulation was to be decided autonomously and not by recourse to the hypothetical choice of law statute. On this basis, the testator and her deceased husband had unanimously and implicitly chosen German law for the binding effect, which was evident in particular from the terminology used and the interaction of sections I to III of the will.

6 The Court of Appeal authorised the appeal on points of law to clarify the question of whether the existence of an implied choice of law under the EU Succession Regulation should be decided autonomously by the EU or with recourse to the hypothetical choice of law statute. This question was relevant to the decision, since under German law, an implied choice of German law could not be assumed here. There was insufficient evidence to assume that the parties to the joint will were aware of the declaration required under German law for an implied choice of law.

2. this stands up to legal scrutiny.

8 The Court of Appeal rightly assumed that the parties 1 and 2 were not entitled to the issue of a certificate of inheritance showing their succession at 1/2 each. Rather, the testator's succession was based on the effective joint will of 25 March 1996, the binding effect of which, pursuant to §§ 2270 para. 2, 2271 para. 2 BGB, precluded the testator's subsequent dispositions in favour of the parties 1 and 2.

a) The Court of Appeal initially decided without error of law that the joint will drawn up between the testatrix and her husband on 25 March 1996 constituted a contract of succession within the meaning of Article 3(1)(b) of the EU Succession Regulation. The EU Succession Regulation is applicable as it concerns an estate with a cross-border element, which in this case results from the Austrian nationality of the German testator's husband (on the cross-border element, see, for example, ECJ, judgment of 16 July 2020, C-80/19, ECLI:EU:C:2020:569, ZEV 2020, 628 para. 42-44, 39; MünchKomm-BGB/Dutta, 8th ed. Art. 1 EuErbVO para. 61).

10 Under Article 3(1)(b) of the Regulation, an agreement as to succession is an agreement, including an agreement based on mutual wills, which, with or without consideration, creates, modifies or withdraws rights in the future estate or estates of one or more of the parties to that agreement. This also includes the joint will under German law, which contains reciprocal dispositions within the meaning of Section 2270 of the German Civil Code (BGB) (see MünchKomm-BGB/Dutta, 8th ed. Art. 3 EuErbVO para. 11). In contrast, there is no joint will in accordance with Art. 3 para. 1 c) of the EU Succession Regulation, as the testamentary disposition does not have to be made in a single document as required by this provision.

11 As the testator died on 22 May 2017, this Regulation applies to her succession in accordance with Art. 83 para. 1 of the Regulation. The transitional provision of Art. 83 para. 3 of the EU Succession Regulation stipulates that a disposition of property upon death made before 17 August 2015 - as is the case here - is admissible and formally and substantively valid if it meets the requirements of Chapter III or if it is admissible and formally and substantively valid under the rules of private international law applicable at the time the disposition was made in the state in which the deceased had his habitual residence or in a state of which he was a national or in the Member State whose authority is dealing with the succession matter. On this basis, the Court of Appeal decided, without error of law and without being challenged by the appeal on points of law, that the joint will of the spouses dated 25 March 1996 was admissible (Art. 83 (3) Alt. 1 EuErbVO in conjunction with Art. 25 (2) subpara. 1 EuErbVO) as well as formally (Art. 83 (3) Alt. 1 in conjunction with Art. 27 EuErbVO) and substantively effective (Art. 83 (3) Alt. 1 in conjunction with Art. 25 (2) subpara. 2 EuErbVO).

b) Contrary to the opinion of the appeal on points of law, the Court of Appeal also decided without error of law that German law applies to the binding effect of the joint will of 25 March 1996. Firstly, it correctly assumed that the question of whether German or Austrian law applies to the binding effect cannot be left open here, since, according to the findings of the court of appeal, which cannot be criticised on appeal, binding dispositions upon death under Austrian inheritance law are only possible in inheritance contracts, which require a special notarial form, which is not complied with here.

13 Pursuant to Art. 25 para. 3 of the EU Succession Regulation, the parties may choose, for the admissibility, substantive validity and binding effect of their agreement as to succession, including the conditions for its cancellation, the law which the person or one of the persons whose succession is concerned could have chosen pursuant to Art. 22 of the EU Succession Regulation under the conditions specified therein. The provision of Art. 25 para. 3 EU Succession Regulation applies here via Art. 83 para. 2 EU Succession Regulation. Accordingly, if the deceased had chosen the law applicable to his succession before 17 August 2015, this choice of law is effective if it meets the requirements of Chapter III or if it is effective under the rules of private international law applicable at the time of the choice of law in the state in which the deceased had his habitual residence or in a state of which he was a national. The transitional provision of Art. 83 para. 2 Alt. 1 EuErbVO also covers inheritance contracts according to the case law of the Senate and permits a corresponding choice of law according to Art. 22 EU Succession Regulation (Senate decision of 10 July 2019 - IV ZB 22/18, BGHZ 222, 365 para. 12 f.).

aa) Pursuant to Article 22(2) of the EU Succession Regulation, the choice of law must be made expressly in a declaration in the form of a disposition of property upon death or must result from the provisions of such a disposition. The testator and her husband did not make an express choice of law in the joint will of 25 March 1996, according to the findings of the Court of Appeal, which are not objectionable on legal grounds.

15 However, the Court of Appeal did not err in law in finding that the testatrix and her husband had impliedly chosen German law for the question of binding effect. The question of whether the existence of an implied choice of law is to be decided autonomously or by recourse to the hypothetical choice of law statute - in this case German law - is, according to the solution of the Court of Appeal, relevant to the decision, since it assumed that, under German law, an implied choice of German law could not be assumed because there was not sufficient evidence to assume that the parties to the joint will were aware of the declaration required under German law for an implied choice of law (cf. BeckOK-BGB/Lorenz, Art. 25 EGBGB para. 21 (as of 1 November 2020); Burandt/Schmuck in Burandt/Rojahn, EuErbVO Art. 22 para. 6; jurisPK-BGB/Sonnentag, 9th ed, Art. 22 EuErbVO para. 20 f.; Staudinger/Dörner, EGBGB (2007) Art. 25 para. 535). In contrast, the Court of Appeal assumed that, on the basis of an interpretation of the concept of implied choice of law that is independent of the European Union, the testator and her deceased husband had unanimously chosen German law for the binding effect in the will of 25 March 1996.

16 The question of what is to be taken into account in the choice of law for the binding effect is disputed. Some argue that the hypothetically chosen law should be taken into account (e.g. Köhler in Gierl/Köhler/Kroiß/Wilsch, Internationales Erbrecht 3rd ed., Part 1 EuErbVO § 4 para. 30; ders. in Kroiß/Horn/Solomon, Nachfolgerecht 2nd ed., Part 3 Internationales Erbrecht EuErbVO Art. 22 para. 10; Burandt/Schmuck in Burandt/Rojahn, Erbrecht 3rd ed. Art. 22 EuErbVO para. 6; jurisPK-BGB/Sonnentag, 9th ed. Art. 22 EuErbVO para. 20; Leitzen, ZEV 2013, 128, 129; Pfeiffer, IPrax 2016, 310, 313; probably also Dörner, ZEV 2012, 505, 511; Schaub, Die EU-Erbrechtsverordnung in Hereditare - Jahrbuch für Erbrecht und Schenkungsrecht 2013, p. 91, 115).

17 In contrast, the prevailing opinion assumes - as does the Court of Appeal - that the question of whether an implied choice of law exists is to be determined autonomously by the EU (MünchKomm-BGB/Dutta, 8th ed. Art. 22 EuErbVO para. 14; NK-BGB/Looschelders, 3rd ed. Art. 22 EuErbVO para. 28; Erman/Stürner, BGB 16th ed. Art. 22 EuErbVO para. 12; Palandt/Thorn, BGB 80th ed. Art. 22 EU Succession Regulation para. 6; BeckOGK/J. Schmidt, EuErbVO Art. 22 para. 21 (as of 1 November 2020); Zimmermann/Grau, Praxiskommentar Erbrechtliche Nebengesetze EuErbVO para. 195; Schauer in Deixler-Hübner/Schauer, Kommentar zur EU-Erbrechtsverordnung (EuErbVO) 2nd ed. Art. 22 para. 14; Bauer in Dutta/Weber, Internationales Erbrecht Art. 22 EuErbVO para. 19; Odersky in Hausmann/Odersky, Internationales Privatrecht in der Notar- und Gestaltungspraxis 3rd ed. § 15 para. 117; von Bary, ZEV 2021, 38, 39; Cach/Weber, ZfRV 2013, 263, 265; Nordmeier, GPR 2013, 148, 151 et seq.; Fornasier, FamRZ 2020, 1956 f.; Emmerich, Probleme der Anknüpfung im Rahmen der EuErbVO, p. 187 f.; D. Stamatiadis, in Pamboukis, EU Succession Regulation No 650/2012 Art. 22 para. 56; in this direction also OLG Köln ZEV 2019, 633 para. 10).

bb) The latter view is correct. The wording of Art. 22 para. 2 Alt. 2 of the EU Succession Regulation. According to this, the choice of law must result from the provisions of a disposition of property upon death. Thus, the Union legislator itself has already provided a definition of the concept of implied choice of law (NK-BGB/Looschelders, 3rd ed. Art. 22 EuErbVO para. 28). According to the established case law of the Court of Justice of the European Union, it follows from the requirements of both the uniform application of Union law and the principle of equality that the terms of a provision of Union law which does not expressly refer to the law of the Member States in order to determine its meaning and significance - as in this case - must, as a rule, be given an autonomous and uniform interpretation within the Union (ECJ, judgment of 1 March 2018, C 558/16, ECLI:EU:C:2018:138, ZEV 2018, 205 para. 32 on the qualification of Section 1371 BGB).

19 Such a reference to national law cannot be inferred from the legislative history either. The Commission proposal of 2009 on Art. 17 para. 2 EU Succession Regulation still expressly provided that the choice of the law applicable to the succession must be made explicitly (see NK-BGB/Looschelders loc. cit. para. 27; MünchKomm-BGB/Dutta, 8th ed. Art. 22 EuErbVO para. 13; Zimmermann, Praxiskommentar Erbrechtliche Nebengesetze, 2nd ed. EuErbVO para. 195). In contrast, the legislator then decided, following the example of Art. 3 para. 1 sentence 2 Rome I Regulation, to also allow an implied choice of law (see BeckOGK/J. Schmidt, EuErbVO Art. 22 para. 20 [as of 1 November 2020]; Emmerich, Probleme der Anknüpfung im Rahmen der EuErbVO, p. 188; NK-BGB/Looschelders, 3rd ed. Art. 22 para. 27; MünchKomm-BGB/Dutta, 8th ed. Art. 22 EuErbVO para. 13). In contrast to Art. 3 para. 1 sentence 2 Rome I Regulation, no qualified requirements are placed on the implied choice of law. While Art. 3 para. 1 sentence 2 Rome I Regulation requires that the choice of law must clearly result from the provisions of the contract or from the circumstances of the case, a choice of law resulting from the provisions of a disposition of property upon death is sufficient for Art. 22 para. 2 Brussels I Regulation. This difference is justified by the fact that the EU Succession Regulation is not concerned with the implied choice of law by two parties to a contract with potentially conflicting interests, but with a unilateral implied choice of law by the testator. Since the intention here is to give effect to his will, it seemed objectively justified to set a lower threshold for the implied choice of law than in Art. 3 para. 1 sentence 2 Rome I Regulation (BeckOKG/J. Schmidt, EuErbVO Art. 22 para. 20 [as of 1 November 2020]). In the context of the Rome I Regulation, too, it has already been predominantly argued that the question of whether the conduct of the parties is to be regarded as an implied choice of law is to be interpreted autonomously by the Union (BeckOGK/Wendland, Rom I-VO Art. 3 para. 126 [as of 1 February 2020]; Emmerich, Probleme der Anknüpfung im Rahmen der EuErbVO, p. 186, 188 with further references). There are no indications that the EU legislator intended to choose a different connecting factor in the context of the EU Succession Regulation.

20 Recitals 39 and 40 of the EU Succession Regulation also speak in favour of a Union-autonomous interpretation from a systematic point of view. According to recital 39, a choice of law should be made expressly in the form of a disposition of property upon death or result from the provisions of such a disposition. A choice of law could be regarded as resulting from a disposition of property upon death if, for example, the testator had referred in his disposition to specific provisions of the law of the state to which he belonged or had mentioned the law of that state in some other way. The EU legislator has thus itself established criteria for an EU-autonomous choice of law. These would be superfluous if the question of an implied choice of law did not depend on an interpretation autonomous to the EU, but on one based on the hypothetically chosen national law (NK-BGB/ Looschelders 3rd ed., Art. 22 EuErbVO para. 28; Odersky in Hausmann/ Odersky, Internationales Privatrecht in der Notar- und Gestaltungspraxis, 3rd ed. § 15 para. 117). This is also supported by the first sentence of recital 40, according to which a choice of law under this Regulation should be effective even if the chosen law does not provide for a choice of law in matters of succession. If it depended on the hypothetically chosen substantive law, these considerations would be superfluous if there was no - or at least no implied - choice of law in the chosen legal system (see also Nordmeier, GPR 2013, 148, 152, 153).

21 Contrary to the opinion of the appellant, this is not precluded by Art. 22 para. 3 of the EU Succession Regulation. Accordingly, the substantive validity of the legal act by which the choice of law is made is subject to the chosen law. In this respect, sentence 2 of recital 40 states that the substantive validity of the legal act by which the choice of law is made should be determined by the law chosen, i.e. whether it can be assumed that the person making the choice of law has understood what this means and agrees to it. In accordance with the provisions of Art. 26 para. 1 of the EU Succession Regulation, substantive validity here refers, for example, to testamentary capacity, testamentary prohibitions, the admissibility of representation, the interpretation of the disposition and defects of will. However, this is only relevant after answering the primary question of whether the testator - expressly or impliedly - chose a specific legal system (see Schauer in Deixler-Hübner/Schauer, Kommentar zur EU-Erbrechtsverordnung (EuErbVO) 2nd ed. Art. 22 para. 16; Nordmeier, GPR 2013, 148, 153; Erman/Stürner, BGB 16th ed. Art. 22 EU Succession Regulation para. 12).

22 According to the meaning and purpose of the provision, the application of uniform criteria to determine whether or not the requirements for an implied choice of law are met in the respective case to be assessed also speaks in favour of an interpretation that is autonomous of the Union. In contrast, basing the assessment on the hypothetically chosen law would have the consequence - as the response to the appeal rightly points out - that in comparable case constellations, different requirements for an implied choice of law might have to be applied, with the consequence of an inconsistent assessment of when an implied choice of law exists within the framework of Art. 22 para. 2 EU Succession Regulation.

23 Finally, it must be taken into account that the transitional provisions of Art. 83 EU Succession Regulation are characterised by the aim of maintaining the validity of - earlier - dispositions of property upon death as far as possible, but also of curing them if necessary (Senate decision of 10 July 2019 - IV ZB 22/18, BGHZ 222, 365 para. 28; for the application of the principle of favour testamentii also BeckOGK/J. Schmidt, EuErbVO Art. 22 para. 26 [as of 1 November 2020]; Bauer in Dutta/Weber, Internationales Erbrecht Art. 22 para. 20; a.A. Magnus, IPrax 2019, 8, 10; BeckOK BGB/Lorenz, Art. 25 EGBGB a.F. para. 21 [as of 1 November 2020]).

cc) Based on an interpretation of the implied choice of law that is independent of the European Union, the Court of Appeal assumed in a legally unobjectionable manner that the testator and her husband chose German law in the joint will of 25 March 1996. The implied choice of a specific national legal system may be supported in particular if the testator uses terms or legal institutions that are specific to this legal system (see sentence 2 of recital 39 of the EU Succession Regulation; also Higher Regional Court Cologne ZEV 2019, 633 para. 10: reference to provisions of Romanian law in a will; NK-BGB/Looschelders, 3rd ed. Art. 22 EuErbVO para. 28; Palandt/Thorn, BGB 80th ed. Art. 22 EuErbVO para. 6; Bauer in Dutta/Weber, Internationales Erbrecht Art. 22 EuErbVO para. 20). In this case, the testator and her husband used, among other things, the term "final heirs", which is recognised in German law (see, for example, Senate judgement of 28 September 2016 - IV ZR 513/15, ZEV 2016, 641 para. 13), but which, according to the findings of the Court of Appeal, is not used in Austrian law. Furthermore, the spouses stipulated that their dispositions upon death should be mutually binding and can only be cancelled jointly during their lifetimes, while after the death of one spouse, the surviving spouse is no longer entitled to amend the legacy and bequest arrangements. In doing so, the testator and her husband also referred to the provisions of German law in Sections 2270 para. 1, 2271 para. 1, para. 2 sentence 1 BGB, whereas under Austrian law, according to the findings of the court of appeal, the surviving spouse is not bound by a joint will.

c) A request for a preliminary ruling to the Court of Justice of the European Union pursuant to Article 267(3) TFEU is not necessary in the case in dispute, as the correct interpretation and application of the relevant provisions of the European Succession Regulation are so obvious in terms of their wording, legislative history, system, meaning and purpose and taking into account the case law of the Court of Justice of the European Union on the autonomous interpretation of the terms of a provision of Union law (ECJ, judgment of 1 March 2018, C-558/16, ECLI:EU:C:2018:138, ZEV 2018, 205 para. 32) are so obvious that there is no room for reasonable doubt (see Senate decision of 10 July 2019 - IV ZB 22/18, BGHZ 222, 365 para. 32; ECJ, judgments of 28 July 2016, Association France Nature Environnement, C-379/15, ECLI:EU:C:2016:603, ABl. EU 2016 No. C 350 p. 11 [juris para. 53]; of 1 October 2015, Doc Generici, C-452/14, ECLI:EU:C:2015:644, GRUR Int. 2015, 1152 para. 43; of 6 October 1982, CILFIT, C-283/81, ECLI:EU:C:1982:335, ECR 1982, 3415 para. 16, 21).

III.

26 The decision regarding the costs is based on Section 84 FamFG, the determination of the value of the object is based on Section 61 para. 1 sentence 1, para. 2 sentence 1 i. V.m. § Section 40 (1) sentence 1 no. 2 GNotKG.