OLG Hamm, decision of 21 March 2019 - 10 W 31/17

(Applicable law in German-Turkish inheritance cases)

Central standard: § Section 14 of the Annex to the German-Turkish Consular Treaty

For the reasons:

3 The parties are in dispute about the granting of a partial certificate of inheritance, limited to the subject matter, after J., who died on 12 February 2016.

4 The deceased was a Turkish citizen. His last place of habitual residence was in T. He was married to Mrs H in his first marriage. The marriage was legally divorced in 1977. The parties to 1) to 5) are the natural children from this marriage. Since XX December 1977, the testator had been married to party 6), who is also a Turkish national. The spouses did not conclude a marriage contract. The parties to 7) to 10) are the joint children from this marriage.

5 The testator did not make a disposition of property upon death. The estate includes a property in T, C-straße XX, entered in the land register of T, sheet XXXX. The deceased has been entered in the land register as the owner of this property since 11 November 1981.

6 With their application dated 11 May 2016, the parties 1) to 5) applied for the issue of a partial certificate of inheritance for themselves with a quota of 1/12 each, limited to the domestic immovable estate. They argued that German inheritance law applied to the estate located in Germany. The deceased's wife was therefore the heiress to 1/4 and the deceased's children were heirs to 1/12 each. There was no increase in the spouse's share of the inheritance in accordance with Section 1371 (1) BGB, as this was a matrimonial property regime that did not apply. Although Article 15 (2) of the Turkish IPRG refers back to German law for the division of immovable marital property, this referral does not cover the provisions of § 1371 BGB. In addition, the constituent element of community of accrued gains under German law was lacking, as the spouses had been living under the matrimonial property regime of separation of property under Turkish law at the time of the acquisition of the property.

7 The parties 6) to 10) raised objections to the issue of the certificate of inheritance applied for. They argued that the wife's share of the inheritance was 1/2, which is why the children of the deceased were only co-heirs at a rate of 1/18 each. The provision of § 1371 BGB was to be qualified under inheritance law and had to be applied in order to avoid contradictions between inheritance and property law. Furthermore, at the time of the inheritance, the spouses were living under the statutory matrimonial property regime of community of accrued gains under Turkish law, which is comparable to the statutory matrimonial property regime of community of accrued gains under German law.

8 In the contested decision, the probate court deemed the facts necessary to substantiate the application of the applicants 1) to 5) to be established. It stated that German inheritance law applied to the property located in Germany. In addition to the deceased's descendants, the wife was an heir to 1/4 of the deceased's estate pursuant to § 1931 para. 1 sentence 1 BGB, the descendants were heirs in equal shares, which led to the requested quota of 1/12 per child of the deceased. There was no increase in the wife's share of the inheritance pursuant to § 1371 para. 1 BGB, as this provision did not apply. The provision was to be qualified under matrimonial property law. Turkish law was applicable in this respect in accordance with Article 14 para. 1 no. 1, 15 para. 1 EGBGB. According to this, the spouses had lived under the statutory matrimonial property regime of separation of property at the time of the acquisition of the property in 1981. The new statutory matrimonial property regime of community of accrued gains introduced in 2002 did not apply to the assets acquired before this date, as the spouses had not agreed to the retroactive effect of the new statutory matrimonial property regime. The standard of § 1371 Para. 1 BGB, which serves the settlement of a community of accrued gains, could therefore not be applied from any legal point of view.

9 The parties 6) to 10) object to this with their appeal. They argue that the probate court wrongly denied the increase in the inheritance share of the parties 6) as the deceased's wife. § Section 1371 of the German Civil Code is applicable, as Article 15 (2) of the Turkish IPRG contains a referral back to German law and thus an instruction to apply Section 1371 of the German Civil Code. Furthermore, the probate court had wrongly assumed the statutory matrimonial property regime of community of property. The new statutory matrimonial property regime of community of accrued gains, which is comparable to the German community of accrued gains, also applies retroactively to assets acquired before the reform of Turkish law. Insofar as a purely matrimonial property law solution without an increase in the inheritance share was nevertheless favoured, the certificate of inheritance should not be issued at least until the matrimonial property law settlement had been concluded in order to prevent the spouse from being disadvantaged.

The complainants request,

set aside the contested order of the Local Court of Bielefeld dated 14 November 2016.

The parties to 1) to 5) applied for,

reject the complaint.

14 They defend the contested decision by repeating and expanding on their arguments at first instance. In particular, they argue that even the referral back in Art. 15 para. 2 of the Turkish IPRG does not open up the scope of application of § 1371 BGB. In addition, Turkish law does not recognise a lump-sum increase in the inheritance quota even in the case of community of property. Any property law compensation claims under Turkish law could be asserted against the heirs as a liability of the estate, but would not prevent the grant of the certificate of inheritance according to the requested quotas

15 The probate court did not remedy the complaint and referred it to the Senate for a decision.

16 B.

17 The appeal is unsuccessful overall. The parties to 7) to 10) are not affected in their rights by the contested decision, which is why their appeal is already inadmissible. Although the appeal of the parties 6) is admissible, it is unfounded on the merits.

18 I.

19 The appeal of the parties 7) to 10) is inadmissible. They are not entitled to appeal.

20 Pursuant to Section 59 (1) FamFG, only those whose rights are affected by the decision are entitled to lodge an appeal. An impairment in this sense only exists if the contested decision directly interferes with a subjective right to which the appellant is entitled, i.e. if it jeopardises, complicates, impairs or otherwise unfavourably influences the exercise of the right. A declaratory judgement in inheritance certificate proceedings pursuant to Section 352e FamFG only affects the rights of the person who asserts that their status under inheritance law is not correctly stated in the judgement to their disadvantage; they must therefore claim the inheritance right attested for another person in whole or in part for themselves (see OLG Hamm, NJW-RR 2014, 9 - juris para. 4 with further references).

21 This requirement is not met here with regard to the parties to 7) to 10). They do not claim that the requested partial certificate of inheritance does not take sufficient account of their own share of the estate. Rather, they criticise the fact that the inheritance share of the parties to 6) should be taken into account with a quota of 1/2 instead of 1/4. However, this would not increase their own share of the inheritance, but rather reduce it.

22 II.

23 The appeal of the parties to 6) is admissible. It is admissible pursuant to §§ 58, 61 FamFG and has been lodged in due form and time pursuant to §§ 63 et seq. FamFG in due form and time. The party 6) is also entitled to lodge an appeal within the meaning of § 59 Para. 1 FamFG, as she is claiming an inheritance right with a quota of 1/2 instead of 1/4, which would result in a reduction of the applicants' inheritance quota from 1/12 to 1/18.

24 However, the appeal is unfounded. As a result, the probate court rightly considered the requirements for the granting of the requested limited partial inheritance certificate with an inheritance share of the applicants of 1/12 each to be fulfilled. In this respect, the party 6) only has a share of 1/4. The arguments in the appeal also do not justify a different decision.

25 1.

26 Succession to the estate of the deceased J, who died on XX February 2016, is determined in accordance with German law with regard to the immovable assets located in Germany that form part of the estate.

27 Section 14 of the Annex to Article 20 of the Consular Treaty between the German Reich and the Republic of Turkey of 28 May 1929 (hereinafter: Succession Agreement) is decisive for determining the applicable inheritance law. The scope of application of the Succession Agreement is open, as the deceased was a Turkish national with habitual residence in Germany. Pursuant to Art. 75 para. 1 of the EU Succession Regulation, the Succession Convention shall continue to apply even after the entry into force of this Regulation.

28 Pursuant to Section 14 of the Succession Agreement, the estate is divided. While the inheritance law relationships with regard to the movable assets are governed by the laws of the country to which the deceased belonged at the time of the inheritance, in this case Turkey, Section 14 sentence 2 of the Succession Agreement refers to the law of the place of location with regard to the immovable assets. In this respect, due to the treaty's origin, it is a reference to a substantive standard, so that German inheritance law applies to the domestic immovable estate.

29 2.

30 As the testator did not leave a disposition of property upon death, the statutory succession applies. The testator was married at the time of death and had nine children. Pursuant to Section 1931 para. 1 sentence 1 of the German Civil Code (BGB), party 6), as the deceased's wife, inherits one quarter in addition to relatives of the first order. The parties 1) to 5) and the parties 7) to 10), as descendants of the deceased, are relatives of the first order. The wife therefore receives one quarter of the estate and the nine children three quarters of the estate in equal shares in accordance with Section 1924 (4) BGB, i.e. each child receives one twelfth of the estate.

313.

32 The inheritance share of the parties to 6) is not to be increased in accordance with § 1371 para. 1 BGB, as the scope of application of this provision has not been opened up. The question of whether the provision is to be qualified under inheritance or matrimonial property law, which is disputed in case law and literature, can be left open (for the state of dispute, see, for example, MünchKomm/Looschelders, 7th ed. 2018, Art. 15 EGBGB para. 61; BGH NJW 2015, 2185; rekindled by the „Mahnkopf“ decision, ECJ NJW 2018, 1377; see, for example, Weber, NJW 2018, 1356). According to the relevant circumstances here, the requirements for the application of Section 1371 (1) BGB or an increase in the inheritance share in corresponding application of this provision are not met in the case of a qualification under inheritance law or matrimonial property law.

33 a)

34 In the case of qualification under matrimonial property law, the partial question of the applicable matrimonial property law is addressed independently.

35 Art. 15 Para. 1 EGBGB is based in this respect on the law applicable to the general effects of the marriage at the time of the marriage. The spouses have not made a choice of law within the meaning of Art. 15 para. 2 EGBGB. According to Art. 14 Para. 1 No. 1 EGBGB in conjunction with Art. 15 Para. 1 EGBGB, the law of the state of the spouses' common nationality is therefore decisive. The testator and the party 6) were both Turkish nationals at the time of the marriage and throughout the marriage. Turkish law therefore applies to the matrimonial property regime.

36 Turkish private international law, which is to be taken into account in accordance with Art. 4 para. 1 sentence 1 EGBGB, also accepts the reference to Turkish substantive law. The relevant Art. 15 of the Turkish IPR Law (hereinafter: IPRG) reads as follows:

37 „(1) The spouses may expressly choose the law of their residence at the time of marriage or one of their home laws at the time of marriage in respect of their matrimonial property; if no such choice is made, the law of their common habitual residence at the time of marriage shall apply in respect of their matrimonial property and, in the absence of such law, the law of their common habitual residence at the time of marriage and, in the absence of such law, Turkish law shall apply.

38 (2) The law of the country in which the immovable property is located shall apply to the division of the property.“

39 As the spouses have not made a choice of law and the common law at the time of the marriage was Turkish law, Turkish substantive law is to be applied in accordance with Art. 15 para. 1 IPRG.

40 Nothing else follows from Art. 15 para. 2 IPRG. This provision is not to be seen as a referral back to German matrimonial property law. Rather, according to the understanding of Turkish legal doctrine and case law that is decisive for the interpretation of the provision, the property law statute for both movable and immovable property is regulated uniformly in Art. 15 para. 1 IPRG, while Art. 15 para. 2 IPRG merely determines the applicable law for the in rem execution of the settlement after the termination of the matrimonial property regime and thus only represents a confirmation of the principle of „lex rei sitae“ applicable in this respect (cf: OLG Karlsruhe, NJW-RR 2018, 713 - juris para.24 with reference to the result of the expert opinion on Turkish law obtained there; agreeing: Gebauer, IPrax 2018, 345, 349; see also Rumpf/Odendahl in Bergmann/Ferid/Henrich, Internationales Ehe- und Kindschaftsrecht, Länderbericht Türkei, Stand Mai 2017 p.23; Rumpf, Einführung in das türkische Recht, 2nd ed. 2016, § 8 para.46).

41The applicable Turkish matrimonial property law therefore does not provide for an increase in the inheritance share upon the termination of the marriage due to the death of a spouse. This applies irrespective of the question in dispute between the parties as to whether the statutory matrimonial property regime of community of property under the old law (Art. 170 of the Turkish Civil Code, old version) or the statutory matrimonial property regime of community of accrued gains under the new law (Art. 236 of the Turkish Civil Code, new version) should be applied in the present case. This question therefore does not need to be decided here either. This is because the statutory matrimonial property regime of community of property under the new law does not provide for a solution under inheritance law in the form of an increase in the spouse's inheritance share, but only compensation claims under the law of obligations (see, for example, Yarayan, NZFam 2016, 1147, 1148, 1151). These are estate liabilities that have no influence on the inheritance share. Against this background, the complainants' view that the possible existence of an equalisation claim prevents the issue of a certificate of inheritance stating certain inheritance quotas is also misguided.

42 b)

43 If, on the other hand, Section 1371 (1) BGB is qualified under inheritance law, the provision does apply directly. However, the requirements for an increase in the inheritance share under this provision are not met.

44 Section 1371 (1) BGB presupposes that the spouses were living under the community of accrued gains regime at the time of the inheritance. The existence of a community of accrued gains is therefore a preliminary question. Whether this is to be linked independently or dependently can be left open, as German law is to be applied according to both the lex fori and the lex causae.

45 As shown, Art. 14 para. 1 no. 1, 15 para. 1 EGBGB refer to Turkish law, which accepts the reference. Turkish substantive law does not recognise the statutory matrimonial property regime of community of accrued gains. According to the above, the matrimonial property regimes under Turkish law cannot be equated with the matrimonial property regime of community of accrued gains by way of substitution.

46 According to the principle of substitution, phenomena under a foreign law can only be equated with the figures of German law if they are functionally equivalent (see, for example, Palandt/Thorn, 78th ed., Einl v Art. 3 EBGB para.31; BGH NJW 2015, 2185, 2187 para.33). Although this does not require an identity of norms, it does require conformity in the essential characteristics that characterise the norm.

47 There is no such agreement in the essential features that characterise the law in this case. This is because, as shown, both the statutory matrimonial property regime of community of property under the old version of Turkish law and the statutory matrimonial property regime of community of accrued gains under the new version of Turkish law lack a solution under inheritance law in the event of the dissolution of the marriage due to the death of one of the spouses. However, according to the prevailing opinion, this is a normative feature of the community of accrued gains under German law (so convincingly Weber, NJW 2018, 1356, 1358; in this direction also Fornasier, FamRZ 2018, 860, 861; BGH NJW 2015, 2185, 2187 para.33).