OLG Köln; 2021-04-22; I-24 U 77/20, 24 U 77/20
Decision by national courts in the field of European Union law — ECLI:DE:OLGK:2021:0422.24U77.20.00
Date: 2021-04-22
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82021DE0422(51)_ENG_SUMJURE
JURE summary
JURE summary
A German citizen residing in Germany (hereinafter the ‘plaintiff’) filed an application against the sole heir (hereinafter the ‘defendant’) of a British citizen who had his last habitual residence for several years prior to his death in Germany (hereinafter the ‘deceased’) demanding the provision of information about the deceased’s estate and its value.
The plaintiff was the adopted son of the deceased. In his last will, in the form of a notarial deed, the deceased made the defendant his sole heir. At the same time, the last will annulled any of the deceased’s previous dispositions mortis causa. Regarding the applicable law of succession, English law was chosen, as the law of his state of origin.
The Landgericht Köln (hereinafter ‘the Court of First Instance’) dismissed the action, citing that despite its admissibility, as both the international and local jurisdiction were given in the case, the action was unjustified. The deceased had chosen English law as the applicable law in the case of his death. However, English law does not recognize the concept of the right to a compulsory portion of an inheritance. The choice of law was made effectively and was not contrary to the German public order.
Following the plaintiff’s appeal, the Oberlandesgericht Köln (hereinafter ‘the Court of Appeal’) changed the decision of the Court of First Instance and ordered the defendant to inform the plaintiff about the structure and value of the estate by presenting the plaintiff with an inventory of the estate.
Under Article 22(1) of the of the Succession Regulation No. 650/2012 (1), the deceased was free to choose English law to be the applicable succession law in the case of his death, as upon making this choice, the deceased was a citizen of the United Kingdom. Contrary to German law, English law does not know the concept of the right to a compulsory portion of an inheritance, i.e. a minimum mandatory share of the deceased’s estate. This, however, is contrary to German public order under Article 35 of the Succession Regulation No. 650/2012, as the right to inherit is guaranteed in Article 14(1)(1) of the Grundgesetz (2) and is specified in other laws.
The opinion found in the professional literature that German public order is not violated if the absence of the right to a compulsory portion of the inheritance is mitigated by compensatory mechanisms such as compulsory rights or maintenance entitlement was not accepted by the Court of Appeal. The Court of Appeal also refused the notion that from the perspective of constitutional law, it would be acceptable to deprive economically independent descendants of full legal age of their right to a compulsory portion of the inheritance if this would not lead to them burdening the German social support system.
(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) Grundgesetz für die Bundesrepublik Deutschland (Basic Law for the Federal Republic of Germany).