OLG München; 2023-02-09; 33 UH 4/23 e
Decision by national courts in the field of European Union law — ECLI:DE:OLGMUEN:2023:0209.33UH4.23E.00
Date: 2023-02-09
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82023DE0209(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, decided by the Oberlandesgericht München (hereinafter ‘the Court of Appeal’), concerns the determination of the ’gewöhnlicher Aufenthalt’ (habitual residence) of a deceased person at the time of death to establish the local jurisdiction for probate matters.
Due to her mental infirmity, the deceased woman had a legal guardian appointed for several decades. The guardian's responsibilities included deciding where the woman should live. Since the appointment of the guardian, the deceased had lived in various homes, most recently in a nursing home in Sonthofen, where she had lived for more than ten years and where she died.
The Amtsgericht Sonthofen (hereinafter ‘the Court of First Instance Sonthofen’) initially declined jurisdiction on the grounds that the deceased's last legal capacity (geschäftsfähigkeit) was when she resided in another jurisdiction. Subsequently, the Amtsgericht Günzburg (hereinafter ‘the Court of First Instance Günzburg’) also declined jurisdiction, and the matter was referred to the Court of Appeal to determine the competent court.
The Court of Appeal relied on Article 21 of Regulation (EU) No 650/2012 (1) and Article 343(1) of the FamFG (2), emphasising the importance of the habitual residence at the time of death in determining jurisdiction. Habitual residence is defined by the actual centre of life, which is determined by a comprehensive assessment of the deceased’s living circumstances before and at the time of death. The deceased had lived in the Sonthofen nursing home since 2011, which objectively confirmed that this was her habitual residence. Despite her mental incapacity and legal guardianship, the deceased’s long-term residence in Sonthofen indicated that this was the centre of her life. The role of the legal guardian in deciding the deceased’s place of residence did not undermine the finding of habitual residence. The guardian’s decisions, including the move to Sonthofen, were taken in the best interests of the deceased. Furthermore, the deceased had expressed a desire to remain in the Sonthofen nursing home, which satisfied the subjective element of habitual residence.
The Court of Appeal held that the deceased’s habitual residence at the time of her death was the nursing home in Sonthofen. Therefore, the Court of First Instance Sonthofen was granted local jurisdiction for the probate proceedings.
(1) 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.
(2) Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction).