OLG Munich, decision of 24 August 2020, 31 Wx 241/18

(Community wills under the EU Succession Regulation, Hague Convention on the Form of Wills, implied choice of law, non-genuine retroactive effect, last habitual residence)

Central standards: Art. 83 para. 2, Art. 25 EU Succession Regulation

Summary: In this decision, the Munich Higher Regional Court comments on the validity of joint wills that were drawn up before the EU Succession Regulation came into force. It also considers the question of implied choice of law, which arises in the case of joint wills with cross-border references. Before doing so, the Munich Higher Regional Court states almost in passing that German joint wills are to be categorised as „contracts of succession“ under Article 25 of the EU Succession Regulation. This is remarkable in light of the fact that the qualification is disputed in the literature (cf. for an argumentative overview mwN Leipold, The European Succession Regulation (EuErbVO) and the German joint will, ZEV 2014, 139-144).

For the reasons:

II.

10 The admissible appeal is not successful on the merits. As a result, the probate court rightly rejected the application for a certificate of inheritance. The succession after the testatrix is based on the effective joint will of 25 March 1996, the binding effect of which is contrary to the testatrix's later dispositions.

11 1. the establishment of the joint will of 25 March 1996 was admissible.

12 a) Since the testator died after 17 August 2015, her legal succession upon death is the subject of the examination and the Austrian nationality of her husband, with whom she drew up the will of 25 March 1996, has a cross-border connection, the applicable law is generally determined in accordance with Art. 1 para. 1 sentence 1, Art. 83 of the Succession Regulation. Art. 83 para. 3 of the Regulation provides that a disposition of property upon death made before 17 August 2015 is admissible and valid in substance and form if it meets the requirements of Chapter III of the Regulation or if it is admissible and valid in substance and form under the rules of private international law in force at the time the disposition was made in the State in which the deceased had his habitual residence or in a State of which he was a national or in the Member State whose authority is seised of the succession. According to the concept of this transitional provision, it is therefore sufficient if the will is admissible and valid under only one of the different conflict-of-law rules (EU Succession Regulation, former IPR of the state of residence, former IPR of the state of nationality, former IPR of the court seised).

13 b) The joint will is admissible under the law designated by the conflict-of-law rules of Chapter III of the EU Succession Regulation (Art. 83 para. 3, 1st Alt. EuErbVO).

14 aa) Article 25 of the EU Succession Regulation applies to the admissibility of the joint will. It constitutes a contract of succession within the meaning of Art. 3 para. 1.

15 b) EU Succession Regulation. Accordingly, an agreement as to succession is an agreement, including an agreement based on reciprocal wills, which, with or without consideration, creates, modifies or withdraws rights in the future estate or estates of one or more persons involved in this agreement. In any case, the joint will under German law, which contains reciprocal dispositions (§ 2270 BGB), is an inheritance contract within the meaning of the autonomously defined term of the EU Succession Regulation (Dutta in: MüKo BGB, 7th ed. , EuErbVO Art. 3 para. 11 with extensive evidence also on the opposing view in footnote 23). According to the structure of the joint will, in particular in clause III, the testator and her predeceased husband intended the dispositions to be binding.

16 The joint will concerns the estate of several persons, namely the testator and her husband, so that the law applicable to the admissibility of the joint will is generally governed by Art. 25 para. 2 subpara. 1 EU Succession Regulation.

17 Whether an implied choice of German law, limited to the statute in which the will is drawn up, by reference to the form and content of a joint will modelled on §§ 2265 et seq. BGB pursuant to Art. 25 para. 3 in conjunction with Art. 22 para. 2 Alt. 2 of the EU Succession Regulation can be left open for the time being. This is because the admissibility of the joint will is governed solely by German law, even according to the objective connection of the statute of establishment (Art. 25 para. 2 subpara. 1 EuErbVO). Accordingly, the joint will is only admissible if it is admissible under each of the laws that would apply to the legal succession of the individual persons involved under this Regulation if they had died at the time at which the contract of succession was concluded. Therefore, the hypothetical law of succession under the EU Succession Regulation must be determined for both persons involved in the joint will under the circumstances prevailing at the time it was drawn up.

18 The objective link to habitual residence determined in this way in accordance with Art. 21 para. 1 of the EU Succession Regulation leads to German law for both spouses. The habitual residence is to be determined by examining all circumstances of the individual case (recital no. 23 sentence 2, recital no. 24 sentence 5 EU Succession Regulation), whereby the centre of the deceased's life in family and social terms is to be taken into account (recital no. 24 sentence 3 EU Succession Regulation). According to the findings of the probate court, the deceased and her predeceased husband moved from Austria to Bad Reichenhall in 1995. From this time onwards, the spouses had their joint household in Germany and there were no longer any significant professional, family or other social relationships with Austria. The spouses' habitual residence was therefore in Germany at the time the will was drawn up, even though they had only moved their centre of life from Austria to Germany for about a year. Since the law of succession for both spouses under the EU Succession Regulation is therefore German law, the admissibility of the joint will must be determined solely on this basis. An additional examination of admissibility under Austrian substantive law, as carried out by the probate court (p. 7 et seq. of the contested decision), is not appropriate.

19 bb) Under German law, an agreement on rights to one's own future estate is permissible. With reciprocal dispositions in joint wills (Sections 2270, 2271 BGB) and contractual dispositions in inheritance contracts (Sections 2278, 2289 BGB), German law recognises the possibility of making binding dispositions upon death.

20 2. the joint will of 25 March 1996 is formally valid. Art. 83 para. 3 of the EU Succession Regulation also applies to formal validity.

21 a) The formal validity of the will is to be determined in accordance with Art. 27 in conjunction with Art. 83 para. 3 1st alt. EuErbVO to be determined. The Hague Convention on the Form of Wills, which is to be given priority pursuant to Art. 75 para. 1 U para. 2 of the EU Succession Regulation, does not apply factually. This is because the present joint will was drawn up in two will documents, so that although there is an inheritance contract (Art. 3 para. 1 b) EU Succession Regulation) in the sense of EU law, there is no joint will (Art. 3 para. 1 c) EU Succession Regulation) (Burandt/Rojahn/Burandt/Schmuck, 3rd ed. , EuErbVO Art. 27 para. 2; Dutta in: MüKo loc. cit., EuErbVO Art. 27 para. 1). According to Art. 4 of the Convention on the Law Applicable to the Form of Testamentary Dispositions (HTestformÜ), the Convention is also only applicable to joint wills in the formal sense, i.e. to wills drawn up by several persons in one deed.

22 Art. 27 of the EU Succession Regulation allows it to be sufficient for the formal validity of the will if the will fulfils the requirements of one of the five different connecting factors. In this case, the joint will is already formally valid under the law of the state in which the will was drawn up - in this case Germany - as stipulated in Art. 27 para. 1 a) of the Regulation.

23 b) Under German law, a joint will can also be drawn up in two separate deeds (Braun in: BeckOGK BGB, 1 November 2019, Section 2265 para. 9; Musielak in: MüKo BGB, 8th edition , Section 2267 para. 18; Palandt/Weidlich, 79th edition 2020, Einf v Section 2265 para. 3f; Staudinger/Kanzleiter, BGB, , Section 2267 para. 3). The view of the Reichsgericht cited by the parties to 1) and 2) that a joint will must be drawn up in a single document (so-called objective theory) (RGZ 72, 204, 206) is now rightly outdated. Apart from the fact that such a restriction finds no support in the wording of the law, but on the contrary § 2267 S. 1 BGB rather represents a formal simplification, such a restriction would also not be compatible with the constitutionally protected freedom to make a will (Braun in: BeckOGK loc. cit. § 2265 marginal no. 12). Two separate deeds therefore form a joint will if the joint nature results from circumstances other than the unity of the deeds, which are at least implied in the will documents (BGH NJW 1953, 698, 699; OLG Munich MittBayNot 2009, 55; OLG Braunschweig ZEV 2007, 178). As the probate court has already correctly stated, the joint nature of the will here results from the fact that the two spouses drew up the respective document at the same time, in the same place and with the same wording. The heading „Joint will“ on the two individual wills emphasises the joint nature of the wills. Each of the two documents also lists both spouses and formulates the individual dispositions in „we“ form.

24 3. finally, the joint will of 25 March 1996 is materially valid pursuant to Art. 25 para. 2 subpara. 2 in conjunction with 83 para. 3, 1st alt. 1 EuErbVO materially effective. The objective connection of the substantive validity of the joint will leads to German law, so that it is irrelevant in the context of substantive validity whether the spouses have impliedly chosen the German nationality law of the testator as the statute of creation pursuant to Art. 25 para. 3 in conjunction with Art. 83 para. 2 of the EU Succession Regulation by referring to inheritance law provisions of the German Civil Code. According to Art. 25 para. 2 subpara. 2 of the EU Succession Regulation, the substantive validity of an inheritance contract within the meaning of EU law, which concerns the estate of several persons, is determined by the hypothetical law of succession within the meaning of Art. 25 para. 2 subpara. 1 of the EU Succession Regulation to which the closest connection exists. Since the hypothetical law of succession of both the testator and her predeceased husband at the time the joint will was drawn up is German law, only German law can be considered for the objective connection of substantive validity.

25 4. the joint will of 25 March 1996 has a binding effect, which was contrary to the testator's later dispositions.

26 a) German law applies to the binding effect of the joint will.

27 aa) Contrary to the opinion of the probate court, the determination of the applicable law in this respect cannot be left open, as the binding effect of the will of 25 March 1996 is to be assessed differently in each of the legal systems to which the joint will is related (Austria and Germany).

28 Applying the Austrian law applicable at the time of the execution of the will, the joint will - contrary to the opinion of the probate court - has no binding effect.

29 According to Section 1248 p. 2 ABGB (old version), which applies to wills drawn up before 1 January 2017 (Section 1503 para. 7 no. 5 ABGB). 2 ABGB aF, which corresponds to the content of Section 586 para. 2 sentence 2 ABGB, joint wills are revocable. Each spouse can revoke their disposition before and after the death of the first deceased without their knowledge or even consent (OGH 4.11.1997, 10 Ob 388/97z; Jesser-Huß in Schwimann/Kodek, ABGB Praxiskommentar V, 4th edition , § 1248 Rz 4 OGH 18.11.1964, 7 Ob 263/64; OGH 18.12.2009, 6 Ob 167/09s; Fischer-Czermak in Gruber/Kalss/Müller/Schauer, Erbrecht und Vermögensnachfolge, 2nd edition , § 20 Rz 103; Apathy/Neumayr in Koziol/Bydlinski/Bollenberger, ABGB Kurzkommentar, 5th edition , § 58. Auflage , § 587 Rz 3; Jesser-Huß loc. cit.; Weiß/Likar-Peer in Ferrari/Likar-Peer, Erbrecht, p. 178; Gschnitzer/Faistenberger, Erbrecht, 2nd edition , p. 51). This also applies unchanged in the case of reciprocal dispositions, which are freely revocable to the same extent, but with the special consequence that the dispositions of the other spouse (including predeceased spouses) also become ineffective ex tunc upon revocation (Fischer-Czermak loc. cit.; Weiß/Likar-Peer loc. cit.; Gschnitzer/Faistenberger, loc. cit.).

30 The assumption of the probate court that spouses are free under Austrian law to exclude the possibility of revocation with regard to a joint will and thus bind themselves by testamentary disposition is incorrect. On the one hand, this follows from the legal definition of § 552 ABGB, according to which the declaration of the last will „is the arrangement whereby a testator leaves his estate, or part of it, to one or more persons revocably on death“, on the other hand, from § 716 ABGB aF, which is identical in content to the current version of the standard and expressly stipulates that „[t]he appended clause in a will or codicil: that any later disposition at all, or, if it is not designated with a specific feature, should be null and void, [...] is to be regarded as not having been made.“ The non-dispositive unilateral revocability is therefore an essential characteristic of testamentary dispositions, even in joint wills (Supreme Court 26 January 1982, 5 Ob 785/81; Gschnitzer/Faistenberger, loc. cit, p. 44; Apathy/Musger in Koziol/Bydlinski/Bollenberger, ABGB Kurzkommentar, 5th edition , § 716 Rz. 1; Eccher in Schwimann/Kodek, ABGB Praxiskommentar III, 4th edition , § 716 Rz 1; Welser in Rummel/Lukas, ABGB, 4th edition , Vor § 713 Rz. 1; Weiß/Likar-Peer, op. cit, S. 188). Under Austrian law, the joint will is therefore not suitable for achieving estate planning comparable to the German understanding of a binding unified solution (Sections 2269 para. 1, 2270 para. 1, 2271 para. 1 and 2 BGB) (Fischer-Czermak, loc. cit., para. 105).

31 Binding dispositions upon death are therefore only possible under Austrian inheritance law in inheritance contracts (§§ 1249 ff. ABGB), which, as marriage contracts within the meaning of §§ 1217 ff. ABGB can only be concluded in the special form of a notarial deed (§ 1 Para. 1 a) NotAktsG) (Jesser-Huß, loc. cit., § 1249 Rn 5). In such inheritance contracts, spouses can make unilateral irrevocable (§ 1254 ABGB) dispositions of up to three quarters of their estate (§ 1253 ABGB). However, under Austrian law, the binding effect of contractual inheritance dispositions is limited in two ways in addition to the restriction to three quarters of the estate. On the one hand, binding dispositions in Austrian inheritance contracts can only be made in favour of the spouse, while the appointment of third parties as heirs must be reinterpreted as freely revocable testamentary dispositions (St. Rspr.: Rechtssatznummer RS0017047 („Inheritance contracts in favour of third parties are foreign to Austrian law.“), inter alia: OGH 13.02.1958, 3 Ob 34/58; OGH 18.01.1972, 4 Ob 653/71; OGH 12.09.1985, 7 Ob 692/84; OGH 15.05.2014, 6 Ob 168/13v; and case law number RS0017048 („Dispositions on death in an inheritance contract in favour of third parties are freely revocable.“), inter alia: OGH 22.11.1950, 2 Ob 237/50; OGH 30.08.1967, 1 Ob 121/67; OGH 20.01.1971, 6 Ob 326/70; OGH 12.09.1985, 7 Ob 692/84; agreeing Jesser-Huß, op. cit, para. 8; Koch in Koziol/Bydlinski/Bollenberger, ABGB Kurzkommentar, 5th edition , § 1249 para. 5; M. Bydlinski in Rummel/Lukas, ABGB, 4th edition , § 1249 para. 3; Fischer-Czermak loc. cit. para. 64; aA Gschnitzer/Faistenberger, loc. cit., p. 47). On the other hand, the irrevocability of the dispositions ends with the death of the contractual heir, i.e. with the death of the first to die in the case of a mutual appointment of heirs by the spouses (OGH 22 December 1961, 5 Ob 420/61; Jesser-Huß, loc. cit, § 1252 Rn 1; M. Bydlinski, loc. cit., § 1253 Rn 2; Fischer-Czermak, loc. cit., Rz 70, 83; Fritsch in Ferrari/Likar-Peer, Erbrecht, p. 257; Gschnitzer/Faistenberger, loc. cit., p. .

32 Thus, in the present constellation, in which the spouses have appointed each other as sole heirs and third parties as final heirs, a binding effect of the dispositions in favour of third parties, in particular beyond the death of the first deceased, is foreign to Austrian law. Under Austrian law, the will of 25 March 1996 has no binding effect that could have prevented the testator from replacing the appointment of the parties H. and G. as heirs by subsequent individual wills.

33 bb) The applicability of German law to the binding effect of the joint will results from a corresponding implied choice of law.

34 Under Article 25(3) of the EU Succession Regulation, the parties to a contract of succession within the meaning of EU law may also choose, for the binding effect of their contract of succession, including the conditions for its termination, the law which the person or one of the persons whose succession is concerned could have chosen under Article 22, subject to the conditions set out therein. Such a choice of the law applicable to the binding effect made before 17 August 2015 is valid under the transitional provision of Article 83(2) of the EU Succession Regulation if it meets the requirements of Chapter III of the EU Succession Regulation. Insofar as Art. 83 para. 2 of the EU Succession Regulation has retroactive effect, this is not objectionable under European and constitutional law (BGH NJW 2019, 3449). The transitional provision of Art. 83 para. 2 of the EU Succession Regulation covers all of the choice of law provisions of the EU Succession Regulation and thus also a partial choice of law of the statute of succession pursuant to Art. 25 para. 3 of the EU Succession Regulation (BGH NJW 2019, 3449, 33450; J. Schmidt in: BeckOGK, 1.2.2020, EuErbVO Art. 83 para. 10f.; Burandt/Rojahn/Burandt/Schmuck, 3rd ed. , EuErbVO Art. 83 para. 4; Dutta/Weber/Bauer, 1st ed. Auflage 2016, EuErbVO Art. 83 para. 10; Palandt/Thorn, BGB, 79th edition , Art. 83 EuErbVO para. 4; Rudolf ZfRV 2015, 212, 213; Schoppe IPrax 2014, 27, 29; aA (Application of Art. 83 para. 3 EU Succession Regulation as lex specialis for the statute of succession including choice of law in this regard) NK-BGB/Magnus, 2nd edition 2015, Art. 83 para. 14; von Bary, IPrax 2019, 1565; thus also MüKoBGB/Dutta, 7th ed. 2018, EuErbVO Art. 83 para. 7, with the exception of the binding effect not mentioned in Art. 83 para. 3).

35 The will of 26 March 1996 does not contain an express choice of German law for the binding effect. However, Art. 83 para. 2 of the EU Succession Regulation also includes an implied choice of law (Dutta/Weber/Bauer, 1st edition 2016, EU Succession Regulation Art. 83 para. 36; NK-BGB/Magnus, 2nd edition 2015 Art. 83 para. 38; Dutta in: MüKoBGB, 7th edition 2018, EuErbVO Art. 83 para. 13). The EU Succession Regulation contains an autonomous concept of choice of law, which also applies to the transitional provision in Art. 83 EU Succession Regulation. As follows from Art. 22 para. 2 Alt. 2 of the EU Succession Regulation, a choice of law within the meaning of EU law can also result from the provisions of a disposition of property upon death, i.e. it can be implied.

36 The joint will of 26 March 1996 contains such an implied choice of German law for the binding effect, which fulfils the requirements of Chapter III of the EU Succession Regulation (Art. 83 para. 2 Var. 1 EU Succession Regulation). Whether an implied choice of law exists in this sense must be determined taking into account all the circumstances of the individual case. (Dutta in: MüKoBGB/, loc. cit. Art. 22 para. 14; J. Schmidt in: BeckOGK, loc. cit. para. 21; Dutta/Weber/Bauer, 1st edition 2016, EuErbVO Art. 22 para. 19; NK-BGB/Looschelders, 2nd edition 2015, Art. 22 para. 28; Solomon in: Dutta/Herrler, EuErbVO, p. 19, 40f (para. 56); Palandt/Thorn, BGB, 79th edition 2020, Art. 22 EuErbVO para. 6; probably also OLG Cologne NJW-RR 2019, 1353; aA (Relevance of the hypothetically chosen law) GKKW IntErbR/Köhler, 3rd edition , §4 para. 30; Burandt/Rojahn/Burandt/Schmuck, 3rd edition 2019, EuErbVO Art. 22 para. 6; jurisPK-BGB/Sonnentag, 9th edition 2020, Art. 22 EuErbVO para. 20; Leitzen ZEV 2013, 128, 129; Pfeiffer IPrax 2016, 310, 313). An autonomous definition of the implied choice of law arises in particular from the fact that otherwise it would not be possible to explain why the Regulation itself should provide criteria for determining implied choices of law in recital 39 if it wanted this question to be answered by the choice of law statute (see also NK-BGB/Looschelders, 2nd edition 2015, Art. 22 para. 28). Furthermore, this is the only way to ensure that the requirements for an implied choice of law are not treated differently depending on the chosen law. No strict requirements are to be placed on the intention and awareness of a choice of law (Dutta in: MüKoBGB/, loc. cit. Art. 22 para. 14; Dutta/Weber/Bauer, 1st edition 2016, EuErbVO Art. 22 para. 19; Palandt/Thorn, BGB, 79th edition 2020, Art. 22 EuErbVO para. 6). According to recital no. 39 p. 2 of the EU Succession Regulation, one indication of an implied choice of law is „if, for example, the testator has referred in his disposition to specific provisions of the law of the State to which he belongs or has otherwise mentioned the law of that State.“ Thus, the reference to legal institutions of a law that can be chosen in accordance with the EU Succession Regulation, the use of characteristic legal concepts of a national inheritance law system or the reproduction of regulatory concepts laid down by national laws speak in favour of an implied choice of law.

37 According to these principles, the testatrix and her predeceased husband implicitly chose German law for the binding effect in their will of 26 March 1996. On the one hand, the testatrix and her predeceased spouse used terminology in their joint will that refers to German inheritance law. In particular, they expressly named the parties ... and ... as final heirs. The term „final heir“ is recognised in German case law (BGH NJW 1998, 543; 2002, 1126; 2017, 329), whereas it is not used in Austrian law. On the other hand, the implied choice of German law for the binding effect results from the interaction of sections I-III of the joint will. If the spouses here appoint each other as sole heirs and relatives of the testator as final heirs of the last deceased, and furthermore stipulate that the appointment of heirs and the appointment of final heirs are to be "mutually binding", can only be cancelled jointly during the lifetime of both spouses and that the dispositions are irrevocable after the death of one spouse, this clearly refers to the principle set out in §§ 2270 para. 1, para. 2, 2271 para. 1, para. 2 sentence 1 of the German Civil Code for binding joint estate planning in joint wills. An implied choice of German law and the binding effect of the dispositions is ultimately also supported by the fact that this is the only way to realise the express will of the spouses to make the dispositions irrevocable after the death of one spouse.

38 This implied choice of German law for the binding effect of the dispositions from the joint will of 26 March 1996 is also effective under Art. 83 para. 2, 1st alt. EuErbVO effective. As the law of the nationality of the testator whose estate is affected by the joint will, German law is one of the laws that can be chosen in accordance with Art. 25 para. 3 in conjunction with 22 para. 1 of the EU Succession Regulation. The reference to Art. 22 in Art. 25 para. 3 of the EU Succession Regulation makes it clear that the partial choice of law can also be made implicitly with regard to the law governing the creation of the will. The formal requirement of Art. 22 para. 2 in conjunction with Art. 25 para. 3 of the EU Succession Regulation („in the form of a disposition of property upon death“) is also fulfilled because the joint will of 26 March 1996 is a disposition of property upon death within the meaning of the EU Succession Regulation as an inheritance contract under EU law pursuant to Art. 3 para. 1 lit. d).

39 b) According to the relevant statute governing the creation of the will, the dispositions in the joint will of 26 March 1996 had binding effects on the testator. The mutual appointment of sole heirs as well as each appointment of sole heirs in relation to the appointment of the final heir were reciprocal within the meaning of § 2270 para. 1 BGB. This is already evident from the express provision in clause III of the will, meaning that there is no need to resort to the interpretation rule of Section 2270 para. 2 BGB. This reciprocal reference bound the testator in her dispositions after the death of her spouse within the scope of Section 2270 para. 2 sentence 1 BGB.

40 c) The appointment of the complainants as heirs in the will of 7 November 2013 is therefore invalid. This is because this disposition contradicts the appointment of the final heirs of the parties ... and ... in the joint will and excludes the rights of the beneficiaries therein.

41 4. these reciprocal dispositions have also not been effectively revoked. In particular, this binding effect of the dispositions from the joint will did not expire because the testator revoked them in her will dated 7 November 2013. In this respect, however, the Senate is of the opinion that there is already no right of cancellation pursuant to Section 2271 para. 2 sentence 2 in conjunction with Sections 2294, 2333 or 2336 BGB. It is also undisputed that there was no effective cancellation during her lifetime pursuant to Section 2271 (1) BGB.

42 5. the joint will of 25 March 1996, which determines the succession after the testator, does not contain any appointment of the complainants as heirs, so that the certificate of inheritance applied for is not to be granted to them.

III.

43 The appellants shall bear the court costs of their unsuccessful appeals in accordance with Section 22 GNotKG. As the probate court has not yet conclusively determined the value of the estate, the determination of the business value for the appeal proceedings remains reserved.

IV.

44 The appeal on points of law is admissible pursuant to Section 70 para. 2 sentence 1 no. 1 FamFG. Whether the existence of an implied choice of law under the EU Succession Regulation is to be decided autonomously by the EU or by recourse to the hypothetical choice of law statute is a controversial issue in legal doctrine. This question is of general importance beyond the individual case decided here because it can arise in an indefinite number of cases and there is therefore an abstract interest in uniform treatment by the courts. This question is also relevant to the decision. Under German law, an implied choice of German law cannot be assumed here. There are not enough indications that the parties to the joint will are aware of the declaration required under German law for an implied choice of law (BeckOK BGB/Lorenz, 53rd ed.

45 1 February 2020, EGBGB Art. 25 para. 21).