KG Berlin; 2021-09-30; 19 W 127/21
Decision by national courts in the field of European Union law — ECLI:DE:KG:2021:0930.19W127.21.00
Date: 2021-09-30
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82021DE0930(52)_ENG_SUMJURE
JURE summary
JURE summary
This case, decided by the Kammergericht Berlin (hereinafter ‘the Court of Appeal’), concerns the validity of a will signed abroad.
The heirs of a deceased person (hereinafter ‘the plaintiffs’) applied to the Amtsgericht Pankow (hereinafter ‘the Court of First Instance’) for the issue of a certificate of inheritance on the basis of a will signed by the deceased. The deceased was habitually resident in Berlin before her death. Still, the will submitted was signed in Austria in accordance with Article 579 of the ABGB (1), which permits a ‘fremdhändige Verfügung’ (a testament written by another person) provided that it is signed by the testator and witnessed by three persons, two of whom must be present. The will submitted satisfied these requirements.
The Court of First Instance questioned the validity of the Austrian will and the certainty of the heirs. Consequently, the court ordered the Nachlasspflegschaft (estate guardianship) under Article 1960 of the BGB (2). It justified the order on the grounds that the heirs were unknown and that the estate needed protection.
Following the plaintiffs’ appeal, the Court of Appeal examined the will's validity, the application of European and international law, and the heirs' certainty.
The Court of Appeal confirmed that Article 21(1) and Article 83(1) of Regulation (EU) No 650/2012 (3) provide that the applicable substantive law of succession is the law of the deceased’s habitual residence, which was German law. However, Article 75(1) of that Regulation refers to the Hague Convention on the Form of Testamentary Dispositions (4), to which Austria and Germany are parties. Article 1, point (a), of that Convention provides that ‘a testamentary disposition shall be valid as regards form if its form complies with the internal law of the place where the testator made it’. In the present case, although the deceased’s habitual residence was in Germany, the will was governed by Austrian law by virtue of its place of drafting.
The Court of Appeal held that the heirs were known with a high degree of certainty based on the valid will signed in Austria. The Court of First Instance's initial doubts as to the validity of the form of the will were unfounded. Article 1960 of the BGB provides for the appointment of a guardian of the estate if the heir is unknown or if there is uncertainty as to the acceptance of the inheritance. Given the high probability that the plaintiffs were the rightful heirs, the appointment of a guardian of the estate was unnecessary and inappropriate.
Therefore, the Court of Appeal overturned the decision of the Court of First Instance and confirmed that the will signed in Austria was valid and that the heirs were known. Consequently, the appointment of a guardian of the estate was revoked.
(1) Allgemeines bürgerliches Gesetzbuch (Austrian Civil Code).
(2) Bürgerliches Gesetzbuch (German Civil Code).
(3) 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.
(4) Hague Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions.