The habitual residence of the testator
In cross-border succession cases, the question usually arises as to which domestic law is decisive for the assessment of the facts. The European Regulation on Succession (EuErbVO) refers to the last habitual residence of the decedent (Article 4 EuErbVO).
General approach
The EuErbVO does not explicitly define the habitual residence. However, it provides criteria for the interpretation of the term in its recitals.
In principle, the authority or court dealing with the succession will make an overall assessment of the circumstances of the deceased in the years preceding his death and at the time of his death for the purpose of determining habitual residence. The aim of this assessment is to find out to which state the decedent had a closer connection. In practice, the decedent's place of death and habitual residence usually coincide, which is why the courts only begin investigations if there are concrete indications of a different habitual residence.
External criteria
The criteria for this assessment are, in principle, the duration and regularity of residence in the state in question, as well as the related circumstances and reasons. More precisely, it is examined in which state the center of existence of the decedent was established.
On the one hand, the family relations of the decedent are used for this purpose. For example, the location of the rest of the family with whom the decedent maintained contact until his death may speak in favor of a habitual residence there.
In addition, other social relationships are also included in the investigation. For example, the location of spouses or partners may speak in favor of establishing habitual residence. The friends of the decedent or club memberships may also be decisive.
Furthermore, the professional relationships of the decedent must also be taken into account. It should be noted, however, that it is not sufficient for habitual residence if the testator has to move abroad temporarily for professional reasons or if he had to commute frequently.
Other helpful criteria can be the location of the assets (in particular, the location of real estate, accounts and other valuables of the testator should be considered here), as well as the language skills and nationality of the testator.
Will of the testator
In addition to the externally ascertainable criteria, the testator's will to lead may also be of importance in determining the habitual residence. However, caution is advised with this criterion, since in practice it is usually extremely difficult to determine the will, especially if the testator is deceased.
However, this criterion can be helpful in determining whether a new habitual residence can be established immediately or in the case of a short stay abroad before the testator's death. In principle, a short stay abroad is sufficient for the affirmation of habitual residence if a lead will can be proven. Habitual residence is to be denied if the testator has changed residence against or without his will. This is the case, for example, if an incapacitated person is permanently hospitalized abroad or if a soldier is deployed abroad.
Legal alternative
If, exceptionally, the circumstances as a whole show that the decedent had an obviously closer connection with a state other than the one in which the decedent had his habitual residence according to the above criteria, the law of that other state may also be applicable (Article 21(2) of the Regulation). However, this exception is to be assumed only in extremely rare cases, for example, if the decedent moved abroad shortly before his death and has an obviously closer connection to the country of origin. Moreover, this exception should not be used if there are mere doubts about the habitual residence.
Common problem cases in practice:
1. Persons in need of care
Determining the habitual residence of persons in need of care often leads to problems, especially if they are incapable of making independent decisions due to mental impairments. The physical presence of the decedent (especially the location of the nursing home or hospice) is primarily decisive. In addition, the testator's will to reside is also decisive here. If this can no longer be formed (such as in the case of dementia patients), it is questionable whether the will of the legal or legal representative is decisive. It is sometimes argued that the testator must be able to form a will to remain and should at least have the opportunity to integrate socially.
In case law, the core problem lies in the question of whether or not legal capacity is a prerequisite. In this regard, the OLG Munich stated in its decision of 22.3.2017 - 31 AR 47/17 that, in principle, the last habitual residence at the time of the last existing legal capacity of the testator is to be taken into account (margin no. 5 of the judgment). The OLG Celle sees it differently in its decision of 12.9.2019 - 6 AR 1/19. Accordingly, the testator's legal capacity is not relevant for determining the habitual residence (paragraph 6 of the judgment).
2. Pensioners abroad (so-called Mallorca pensioners).
It is not uncommon for older people who have lived in one country all their lives and still have close ties to that country to move to another country for a period of time.
Here it is particularly important to carefully examine the external criteria mentioned above. This is because, exceptionally, habitual residence in the country from which the decedent moved may also be established if there was still a particularly close connection within the meaning of Article 21(2) of the Regulation in the years preceding the death and at the time of the death. Such a closer connection is to be assumed in particular if the deceased has significantly closer social, cultural, linguistic and economic ties with the country.
