OLG Frankfurt a. M., decision of 26 May 2020 - 21 SV 2/20
Central standards: § Section 343 FamFG; Art. 4, Art. 10 EuErbVO
(International jurisdiction for the disclosure of a will held and opened in Germany)
Official guiding principle:
On the question of the applicability of Art. 4 EU Succession Regulation to the - further - proceedings for the opening of a will 2. The probate court is in any case internationally competent for the disclosure of a will of a German testator who died abroad, which is in official custody in Germany and has already been opened, if the execution of the further proceedings in a third country cannot reasonably be expected.
II.
9 On the basis of the admissible submission, the Senate appointed for the decision determines the Local Court of Lichtenfels as the court with local jurisdiction.
10 1. the referral is admissible pursuant to section 5 (1) no. 4 FamFG, as three probate courts have declared that they have no local jurisdiction. The admissibility of the submission is also not precluded by the fact that it was made by a judicial officer, provided that - as here - the proceedings for which jurisdiction is to be clarified fall within the functional area of jurisdiction of the judicial officer (see BayObLG RPfleger 1996, 344, cited in Juris; Keidel/Sternal, FamFG, 2020, Section 5 para. 9). This is because the disclosure obligation to be fulfilled here pursuant to Section 348 (3) sentence 1 FamFG is also the responsibility of the probate court under the new legal situation (see Keidel/Zimmermann, FamFG, 2020, Section 350 marginal number 10) and therefore falls within the jurisdiction of the judicial officer pursuant to Section 3 (2) lit. c in conjunction with Section 16 RPflG.
11 2 Since the deceased's last habitual residence in Germany was indisputably in L., the Local Court of Lichtenfels has local jurisdiction for the notification pursuant to Section 348 (3) FamFG.
12 a) The jurisdiction of the Local Court of Lichtenfels is not precluded by any binding effect of the order of the Local Court of Lichtenfels of 20 November 2019.
13 In principle, a referral order is binding in accordance with Section 3 (4) FamFG. Nevertheless, the order has no binding effect, as it has not yet made a decision regarding the question of further opening proceedings. The (re)referral was only made with regard to the jurisdiction as a custody court and in this respect for the custody proceedings. Moreover, a referral would also have been arbitrary with regard to the further opening proceedings. This is because, according to the Lichtenfels Local Court's own reasoning, the Gelnhausen Local Court also does not have local jurisdiction for the further opening proceedings, as it would already lack international jurisdiction.
14 The same applies to the order of the Local Court of Schöneberg dated 24 June 2019, which does not refer the case to the Local Court of Gelnhausen as the court with local jurisdiction. Rather, it merely referred the case back, denying that it did not have local jurisdiction with regard to the necessary determination of a habitual residence in Germany prior to the handover by the custody court.
15 b) The court with local jurisdiction is responsible for the disclosure to be made here in accordance with Section 348 (3) FamFG, even if the testamentary disposition was opened in accordance with Section 344 (6) FamFG by another court at which the testamentary disposition was kept. This is because after the opening, the court that does not have local jurisdiction must send the disposition of property upon death and a certified copy of the minutes of the opening to the (locally competent) probate court in accordance with Section 350 FamFG, from which it follows directly by implication that the locally competent district court is responsible for notification. In this respect, this is an independent procedure (Keidel/Zimmermann, loc. cit., Section 350 para. 6, 10).
16 The local jurisdiction of the probate court results from Section 343 FamFG. Pursuant to Section 343 (2) FamFG, local jurisdiction is determined by the last habitual residence of the deceased in Germany, which in this case was in L.
17 In this respect, the Berlin-Schöneberg Local Court had also correctly denied its local jurisdiction, as the requirements of Section 343 (3) FamFG were not met.
18 c) The Local Court of Lichtenfels also has international jurisdiction for the further opening proceedings pursuant to Section 348 (3) FamFG in accordance with Section 105 FamFG.
19 In principle, the question of international jurisdiction is not the subject of the determination procedure (OLG Düsseldorf, decision of 26 March 2012 - 3 Sa 1/12, juris para. 19). The situation may be different if local jurisdiction can only be derived from an existing international jurisdiction or, conversely, if it is already certain that no domestic international jurisdiction is established and therefore a determination of the competent court must be rejected (Keidel/Sternal, loc. cit., Section 5 para. 40).
20 In the present case, international jurisdiction for the further opening proceedings should not be rejected with reference to the EU Succession Regulation, as it is not apparent that the jurisdiction provisions of the EU Succession Regulation apply to the opening of wills. This is because the opening of a will held in special official custody does not constitute a decision (cf. Art. 3 para. 1 g EU Succession Regulation) on the entire estate within the meaning of Art. 4 EU Succession Regulation (Keidel/Zimmermann, FamFG, 20th ed. 2020, Section 343 para. 17 and Section 348 para. 65,68; MüKo-Muscheler FamFG 2019, Section 348 para. 15 and Art. 3 EuErbVO, para. 8, Zöller/Geimer, ZPO, 2020, Art. 4 EuErbVO, para. 4; aA, MüKo-Dutta, BGB, 2018, Vorb. Zu Art. 4 EuErbVO para. 9). This is an actual procedural process without a regulating or organising effect for the entire estate (Keidel/Zimmermann, loc. cit.). Furthermore, it may also only be possible to determine whether international jurisdiction exists after the will has been opened (Mü- Ko/Grziwotz, FamFG, 2019, Section 344 para. 40), for example with regard to the question of domestic assets. It is true that the opening and announcement of a will has an influence on the time limit for declarations of acceptance or waiver, for example. However, it is not apparent that the opening and announcement of a testamentary disposition could lead to contradictory decisions by different courts. Insofar as the opening proceedings were conducted in Germany, this does not establish jurisdiction for the subsequent certificate of inheritance proceedings. Jurisdiction for these proceedings would have to be determined further taking into account the provisions of the EU Succession Regulation.
21 However, this question can be left open in the present case. For even if international jurisdiction were to arise not from Section 105 FamFG but, contrary to the opinion of the Senate, from the EU Succession Regulation, this would not lead to a different result.
22 In the present case, there is in any case emergency jurisdiction for the further opening proceedings in accordance with Art. 11 of the EU Succession Regulation, as the execution of the further opening proceedings in Thailand as a third country appears to be impossible for legal reasons on a reasonable assessment. Thai law does not provide for the deposit of a will with the probate court. Foreign wills are only recognised by the Thai courts if they are officially translated and legalised by the Ministry of Foreign Affairs. The enforcement of a foreign will always requires court proceedings in Thailand (Ferid/Fisching/Lichtenberger, Internationales Erbrecht, as of Dec. 2019, Thailand para. 74,75). It is therefore essential for an heir named in a will deposited in Germany to obtain knowledge of the will in order to conduct corresponding proceedings in Thailand. Only then can the heir prepare the necessary steps vis-à-vis the Thai courts responsible for the certificate of inheritance proceedings. However, this is only possible if the will deposited in Germany is not only opened by a German court, but also announced. It cannot reasonably be expected that a Thai court would disclose a will deposited in Germany and written in German to the heirs in Germany (see on this requirement Dutta/Weber, Internationales Erbrecht, 2016, Art. 11 EuErbVO para. 4). Unlike in cases involving a will of a foreign national deposited in Germany, in the case of a testator with German nationality, no forwarding to the consulate of the foreign state in Germany can be considered (see MüKo/Grziwotz, FamFG, 2019, Section 344 para. 40; Keidel/ Zimmermann, FamFG, 2020, Section 348 para. 70).
23 d) The Local Court of Lichtenfels therefore has local jurisdiction for the notification of the opened will in accordance with Section 348 (3) FamFG.