Višje sodišče v Ljubljani; 2019-03-27; II Cp 56/2019
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2019:II.CP.56.2019
Date: 2019-03-27
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82019SI0327(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’), concerned a dispute among heirs as to whether certain property formed part of the estate, leading to the suspension of succession proceedings.
The Court of First Instance suspended the succession proceedings under Article 212 of the ZD (1) because the heirs disagreed on whether a half share of a parcel in Croatia, transferred to one heir (M. J.) by a 1985 gift contract, belonged to the estate. The Court of First Instance referred the other heirs (S. O., L. T. and Z. G.) to bring a civil action seeking a declaration of nullity or invalidity of that gift contract, which they alleged to be fictitious.
Both M. J. and S. O. appealed. M. J. argued that the gift contract, as a foreign document, could not be considered without an official translation and that Croatian law should apply since the immovable property was located in Croatia. S. O. contended that the Court of First Instance had misapplied substantive law by referring the co-heirs, rather than M. J. herself, to bring the action. He further argued that he should have been referred to litigation on his exclusion claim (izločitveni zahtevek) for contributions allegedly increasing the value of the property.
The Court of Appeal held that the deceased had died after 17 August 2015, meaning that the Succession Regulation (2) applied. Under Article 21 thereof, the succession as a whole is governed by the law of the State of the deceased’s habitual residence, which in this case was Slovenia. Therefore, Slovenian law, not Croatian law, applies, notwithstanding the location of the disputed immovable property. The purpose of the procedural translation requirement—to allow parties to understand the case material—did not justify disregarding a document that M. J. herself invoked as the legal basis for her ownership.
The Court of Appeal further held that M. J. had no legal interest in bringing an action to challenge the validity or reality of the gift contract on which her own ownership rested; therefore, referring the other heirs to litigation was the only correct solution. There was no error in declining to refer S. O. simultaneously to bring an exclusion claim, since the scope of the estate must first be determined; only thereafter can any exclusion claim be assessed. Moreover, should S. O. wish to assert original acquisition of ownership (e.g., through building on another’s land), he may bring such an action without any referral order.
Accordingly, the Court of Appeal dismissed both appeals and upheld the decision of the Court of First Instance.
(1) Zakon o dedovanju (Inheritance Act).
(2) Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession.