OLG Cologne, decision of 9 December 2020 - 2 Wx 293/20
Central standards: EU Succession Regulation Art. 10, 19, 21
(Relevant procedural law for the domestic arrangement of a guardianship of an estate of a deceased person with last habitual residence abroad)
Guiding principles:
(1) German courts have international jurisdiction to order the administration of the estate of a deceased person whose last habitual residence was abroad and whose assets are located in Germany.
2. the arrangement and supervision of the guardianship of the estate shall be governed by German substantive law, even if foreign law applies to the succession.
For the reasons:
II.
11 The immediate appeal against the determination of the penalty payment, which pursuant to Sections 35 (5) FamFG, 568 S. 1 ZPO, which is decided by a member of the senate as a single judge because the contested decision was issued by a judicial officer, is admissible pursuant to Sections 35 (5) FamFG, 567 (1) No. 1 ZPO and is also admissible in other respects, in particular because it was lodged in due form and time.
12 However, the immediate appeal is unsuccessful on the merits. The probate court was right to impose a penalty payment of € 1,000.00 on the party involved.
13 The international jurisdiction of German courts to order the guardianship of the estate and supervisory measures vis-à-vis the guardian of the estate arises here pursuant to Art. 10 (1) (a) of the EU Succession Regulation. The deceased had his habitual residence in Brazil at the time of his death, i.e. not in a member state of the EU Succession Regulation. The deceased's assets are located in Germany and the deceased was a German national.
14 The penalty payment is determined in accordance with German substantive provisions. It is true that, in accordance with Art. 21 para. 1 of the Succession Regulation, Brazilian law is generally applicable to the succession because the deceased had his last habitual residence in Brazil and a referral back or further referral in accordance with Art. 34 of the Succession Regulation is out of the question in view of the link to domicile under Brazilian law. However, measures to secure the estate, such as the ordering of a guardianship of the estate pursuant to Sections 1960 and 1961 BGB, are to be qualified as procedural powers that also exist in the case of a foreign inheritance statute and may be exercised by a German court as part of the lex fori (MüKo-BGB/Dutta, 8th ed. 2020, EuErbVO, Art. 19 para. 3; Zimmermann, Rpfleger 2017, 2, 3). This applies to the imposition of a penalty payment due to a failure to render accounts in the context of a guardianship of an estate ordered upon application within the meaning of Section 1961 BGB pursuant to Art. 29 para. 1, para. 3 EuErbVO in any case if - as here - the law applicable to the succession is the law of a third country (MüKo-BGB/Dutta, 8th ed. 2020, EuErbVO, Art. 29 para. 16; Dutta/Weber/Magnus, Internationales Erbrecht, 2016, EuErbVO, Art. 29 para. 6, 45).
15 The requirements for the imposition of a penalty payment pursuant to Section 35 FamFG are met. The obligation to submit accounts pursuant to Sections 1915 para. 1 sentence 1, 1840 BGB exists vis-à-vis the court and can generally be enforced by the court by means of a penalty payment pursuant to Sections 35 para. 1 FamFG, 1915 para. 1 sentence 1, 1837 para. 3 BGB (Palandt/Götz, BGB, 79th edition 2020, Section 1840 marginal no. 5). The probate court requested the party involved to submit accounts on several occasions and ultimately set a deadline for submission. In the event of failure to do so, the probate court threatened to impose a penalty payment (Section 35 (2) FamFG). It also specified the amount of the penalty payment at € 1,000.00 (see Zimmermann, Die Nachlasspflegschaft, 5th ed. 2020, para. 721). The party involved also culpably failed to comply with the probate court's order. Pursuant to Sections 1915 para. 1 sentence 1, 1840 para. 2, para. 3 sentence 1 BGB, the curator of the estate must provide the probate court (Section 1962 BGB) with an annual account of his or her asset management. According to §§ 1915 Para. 1 S. 1, 1841 BGB, the account should contain an organised list of income and expenditure, provide information on the outflow and inflow of assets and, if receipts are required, be accompanied by supporting documents. In this case, there has been no accounting in this sense for the administration of the estate, which is also included in the scope of duties of the curator of the estate. The party involved did submit a list of assets and provided information on the administration of the estate in his reports. However, an organised list of income and expenditure and the submission of the corresponding receipts are missing. The deadline of one year after the appointment of the curator of the estate has long since expired. The amount of the penalty payment is also not objectionable.