OLG Celle, decision of 12 September 2019 - 6 AR 1/19
Central standards: Artt. 4, 21 EuErbVO
(Usual stay when moving to a nursing home)
Official guidelines:
1 „Habitual residence“ is understood to mean the actual centre of a natural person's life, which is to be determined by means of an overall assessment of the deceased's living circumstances in the period prior to death and at the time of death. A minimum period of residence is not required; in any case, a period of only a few weeks may be sufficient to establish „habitual residence“. This applies in particular if the change of location serves the purpose of moving to a nursing home and a return to the previous place of residence is not expected.
2. the legal capacity of a testator is not to be clarified in the procedure for determining jurisdiction. § Section 8 BGB, according to which a person who is legally incapable or whose legal capacity is limited can neither establish nor cancel a domicile without the will of their legal representative, is no longer applicable. § Section 343 FamFG (old version) was still based on domicile, whereas the new version of the provision „only“ refers to „habitual residence“.
For the reasons:
1 The senate with jurisdiction pursuant to Section 5 (1) No. 4 (see also OLG Brandenburg of 17 August 2010 - 9 AR 4/10, BeckRS 2010, 20521) and Section 5 (2) FamFG designates the Salzgitter Local Court as the competent court.
2 § Since its reform in connection with the EU Succession Regulation and in line with Art. 4 EU Succession Regulation, Section 343 para. 1 FamFG has been based on the „habitual residence“ of the deceased (with the consequence that older decisions on Section 343 para. 1 FamFG may have to be disregarded, e.g. OLG Karlsruhe of 21 May 2013 - 9 AR 11/13, ZEV 2013, 564).
3 Habitual residence„ is understood to mean the actual centre of a natural person's life, which is to be determined by means of an overall assessment of the deceased's circumstances in the period prior to death and at the time of death. The extent to which a subjective element is required in addition to the objective element of actual residence, namely a will to reside, and the requirements to be met in this respect do not appear to have been conclusively clarified.
4 One Minimum length of stay is not required, in any case - as here - a period of only a few weeks may be sufficient to establish a „habitual residence“. This applies in particular if - as in this case - the change of location serves to move to a care home and a return to the previous place of residence is not expected.
5 Whether (E) was legally incapacitated at the time of her move from Peine to Salzgitter is not established solely on the basis of the circumstances stated by the Peine Local Court in the order of ...2019 (the minutes of the judicial hearing in the care proceedings held on ...2018 by way of legal assistance speak against legal incapacity). However, no further investigations are required. § Section 8 of the German Civil Code (BGB), according to which a person who is legally incapacitated or limited in their legal capacity can neither establish nor cancel a domicile without the will of their legal representative, is not (no longer) applicable. § Section 343 FamFG (old version) still referred to domicile, whereas the new version of the provision „only“ refers to habitual residence. Irrespective of this, it applies to the facts of the case at hand that doubts about the legal capacity of a testator do not have to be investigated in the proceedings to determine the court with jurisdiction for inheritance certificate proceedings. It seems far-fetched to the Senate to carry out investigations in this context alone, which may be extensive and cost-intensive, but which may be irrelevant for the further proceedings (as already stated with regard to Section 343 FamFG aF OLG Cologne of 6 February 2015 - 2 Wx 27/15, BeckRS 2015, 7622, ZEV 2015, 366 Ls. mwN).
6 The nursing home in which E died is located in the jurisdiction of the Salzgitter District Court, with the result that this court has jurisdiction over the probate matter.