BGH; 2022-06-29; IV ZR 110/21
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2022:290622UIVZR110.21.0
Date: 2022-06-29
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82022DE0629(51)_ENG_SUMJURE
JURE summary
JURE summary
A German citizen residing in Germany (hereinafter the ‘plaintiff’) filed an application against a testamentary 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 previous dispositions mortis causa of the deceased. Regarding the applicable law of succession, the English law was chosen as a partial law of his State of Origin.
The Landgericht Köln (hereinafter ‘the Court of First Instance’) dismissed the action.
Based on 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.
The defendant pursued its case unsuccessfully further by filing a revision with the Bundesgerichtshof (hereinafter ‘the Supreme Court’) demanding the action to be fully dismissed.
Within its review, the Supreme Court confirmed the conclusions of the Court of Appeal.
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 a right to a compulsory portion of the inheritance. i.e. a minimum mandatory share in the deceased’s estate. This fact, however, was under Article 35 of Succession Regulation No. 650/2012 contrary to German public order as the right to inherit is guaranteed in Article 14(1)(1) of the Grundgesetz (2) and specified in other laws. As a strong connection to Germany was evident in the case, English law could not be applied. The case was to be determined according to German law.
The Supreme Court dismissed the revision of the defendant against the decision of the Court of Appeal.
(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).