OLG Hamm, decision of 2 January 2018 - I-10 W 35/17
Central standards: Artt. 3 para. 1 lit. g, 4, 21 EuErbVO
(Ordinary stay)
Author's guiding principle:
In order to determine the habitual residence of the deceased within the scope of the EU Succession Regulation, the actual centre of life must be taken into account. This also requires at least an intention to reside and remain.
For the reasons:
II.
The (...) admissible complaint of the complainants 1 and 2 is well-founded.
E died on 9 July 2016. The EU Succession Regulation, which came into force on 17 August 2015, is therefore applicable. According to Art. 4 of the EU Succession Regulation, the courts of the Member State in whose territory the deceased had his habitual residence at the time of his death have jurisdiction to rule on succession matters for the entire estate. Pursuant to Art. 3 para. 1 lit. g of the Regulation, a decision is any decision issued by a court of a Member State in a succession matter, regardless of its name, and therefore also a certificate of inheritance, as requested by the Ast. in the present case.
In the present case, E's habitual residence could have been either in Germany or in Spain. The term „habitual residence“ within the meaning of Art. 4 of the EU Succession Regulation is defined in Use of recitals 23 and 24 to be determined. In this respect, a Overall assessment of living conditions also under Consideration of the duration and regularity of visits, particularly close ties to a country, language skills and the location of assets (Thornin Palandt, BGB, 76th edition, Art. 21 EuErbVO). It follows from this that „habitual residence“ is to be understood as 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 years prior to his death and at the time of death (Carpenter in Keidel, FamFG, 19th ed., § 343 para. 62, § 34 IntErbRVG para. 2 et seq.). In addition to the objective aspect of the actual residence, a subjective element, namely the deceased's habitual residence, must also be taken into account when determining the deceased's habitual residence. Residence or lead permit, required. Otherwise, issues of forced or involuntary residence cannot be satisfactorily resolved (Carpenter § Section 343 FamFG para. 67). In the present case, a vast majority of circumstances indicate that E still had his centre of vital interests in Germany in the sense described above, although he had resided in Spain until his death.
In doing so, the Senate focuses primarily on the factual information in the pleading dated 1 February 2016, which was written just a few months before E's death, which initiated the proceedings for early equalisation of gains and which originated from E himself. In the pleading, E's Spanish residential address is stated as his address. However, the information is also provided with the qualification „currently“, from which it can be concluded that E himself did not consider his residence in Spain to be permanent, but only temporary. The application describes in detail that E „emigrated“ to Spain in the 1970s and also entered into a marriage there, from which the complainants were born. After divorcing this marriage, however, he returned to Germany and acquired a shared matrimonial home in V. with his third wife. The Senate does not fail to recognise that E stayed in Spain in the course of the separation from his third wife in 2015. This was obvious, as he had left the shared marital home in V. and wanted to take his own flat, which was available to him in Spain. Nevertheless, E did not deregister in V. Nor did he issue a forwarding order to the post office (...). This also suggests that E had not moved the centre of his life to Spain. Nor did he seek treatment in Spain, but from German doctors and in local hospitals. This is in any case proven by the medical report from the hospital in H. addressed to the general practitioner Dr ... in V. As is clear from E's application of 1 February 2016, he did not want to stay in Spain permanently in June 2015, but wanted to be picked up again from there. Only because nobody wanted to take him back to Germany temporarily did he stay in Spain out of necessity until he could be taken to Germany by his daughter. After a brief return to the marital home in V., he then contacted his sister in .... The fact that he returned to Spain in the further course of time and ultimately died there cannot be interpreted as meaning that he wanted to move back to Spain for good. It is therefore not necessary to decide whether E's handwritten will dated 15 December 2015, which was written in German, could possibly result in an implied choice of law within the meaning of Art. 22 of the EU Succession Regulation in favour of German inheritance law, given that the third branch expressly does not recognise the international jurisdiction of the court seised (see Art. 7(c) of the EU Succession Regulation).
The appeal on points of law was not admissible because the requirements of Section 70 (2) FamFG were not met.