Višje sodišče v Ljubljani; 2021-03-23; I Cp 223/2021
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2021:I.CP.223.2021
Date: 2021-03-23
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82021SI0323(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’), concerned the validity of a Contract for lifelong care with reserved usufruct (pogodba o preužitku) and a Contract of lifelong maintenance (pogodba o dosmrtnem preživljanju) concluded between the deceased and her son (hereinafter ‘the defendant’).
The deceased’s grandchildren (hereinafter ‘the plaintiffs’) brought an action seeking a declaration that both contracts were null and void. They alleged that the contracts were fictitious and had been concluded with the immoral intention of excluding them from the inheritance. As a result of the contracts, the defendant acquired the deceased’s property. The plaintiffs also sought to annul the transfer of ownership.
The Court of First Instance dismissed both the primary and the subsidiary claims. It was determined that the purpose of the contracts was to ensure the deceased's security and care, not to deprive the plaintiffs of their inheritance. The plaintiffs were unable to prove the alleged fictitiousness of the contracts or the existence of an immoral cause. Furthermore, the court held that the deceased had been fully capable of performing legal acts at the time the contracts were concluded, that her declaration of will had been free and genuine, and that the agreed obligations were proportionate within the meaning of Articles 45 to 51 of the OZ (1).
The plaintiffs submitted an appeal, alleging procedural errors, an incomplete assessment of witness testimony, and inconsistencies between the expert's psychiatric evaluation presented in the proceedings and an earlier medical opinion issued by another doctor. They also contended that the Court of First Instance had disregarded their claim that the defendant had influenced the deceased to sign the contracts.
The Court of Appeal confirmed that the Court of First Instance had properly conducted the proceedings, correctly established the facts and fully addressed all relevant submissions. The burden of proof for the alleged immoral intent lay with the plaintiffs, but they failed to demonstrate that the contracts were concluded to disadvantage them. The Court of Appeal reiterated that the deceased had been entitled to dispose freely of her property, even if such disposal resulted in favouring one heir over others.
Furthermore, the Court of Appeal ruled that the deceased had retained the mental capacity to comprehend the meaning and consequences of her actions. The psychiatric expert’s opinion was consistent, thorough and aligned with the medical documentation; no grounds existed for appointing a second expert. The plaintiffs’ objections to witness testimony and to the interpretation of cognitive tests were unfounded.
As the disputed immovable property was located in Croatia, the Court of First Instance should have applied Croatian substantive law under Articles 19 and 23 of the ZMZPP (2). However, because the relevant Croatian provisions mirror those of the Slovenian OZ, this error did not affect the correctness of the decision. The plaintiffs’ reliance on the Succession Regulation (3) was misplaced, as Article 1(2)(g) expressly excludes from its scope property rights and assets created or transferred otherwise than by succession.
Consequently, the Court of Appeal dismissed the appeal and upheld the judgment of the Court of First Instance.
(1) Obligacijski zakonik (Obligations Code).
(2) Zakon o mednarodnem zasebnem pravu in postopku (Private International Law and Procedure Act).
(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.