Schleswig-Holsteinisches Oberlandesgericht; 2024-04-30; 3 Wx 6/23
Decision by national courts in the field of European Union law — ECLI:DE:OLGSH:2024:0430.3WX6.23.00
Date: 2024-04-30
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82024DE0430(51)_ENG_SUMJURE
JURE summary
JURE summary
Following the death of her husband, a French national, a German widow (hereinafter ‘the plaintiff’) applied for a certificate of inheritance naming her and her husband’s two daughters from a previous marriage (hereinafter ‘the defendants’) as heirs, each receiving one third of the estate.
The deceased and the plaintiff concluded two gift agreements in the event of death before a French notary. In these agreements, the deceased gifted his entire estate to the plaintiff in the event of her survival, subject to the compulsory rights of his daughters.
The plaintiff argued that the gifts were not testamentary dispositions, but gifts inter vivos, freely revocable and not to be regarded as a contract of inheritance. There had been no express choice of French law. Since the deceased had last lived in Germany, German law was applicable, and the German probate court held jurisdiction.
The two daughters disagreed. They argued that the deceased had not established his habitual residence in Germany, as he had intended to return to France after the death of his wife. The gift agreements of 1994 were, in fact, inheritance agreements within the meaning of the Succession Regulation (1). This resulted in an implied choice of law in favour of French law. Consequently, the German probate court did not hold international jurisdiction, and under French law, they were co-heirs alongside the widow, each receiving one third.
The Amtsgericht Lübeck (hereinafter ‘the Court of First Instance’) declared that it had no jurisdiction on the basis of Article 6(a) of the Succession Regulation. It considered the 1994 gift agreements to be dispositions of property upon death and an implied choice of French law. Since the deceased had close ties to France and the majority of his assets were located there, French law was applicable. A certificate of inheritance limited to the German assets could not be issued because there was a risk of conflicting decisions in different Member States. The Court of First Instance, therefore, dismissed the widow’s application as inadmissible.
The plaintiff appealed against this decision of the Court of First Instance to the Schleswig-Holsteinisches Oberlandesgericht (hereinafter ‘the Court of Appeal’).
The Court of Appeal upheld the appeal. It found that the deceased had his habitual residence in Germany, as he had lived there with his wife for the last ten years. Short stays in France and a mere intention to return did not alter this. That meant that, according to Article 4 of the Succession Regulation, the courts holding jurisdiction were German courts.
Despite being referred to as ‘donation entre vifs’, the 1994 gift agreements were to be regarded as inheritance agreements within the meaning of the Succession Regulation. The Court of Justice of the European Union clarified that it was not the national terminology but the purpose of the disposition that was decisive for its classification. Since the gifts were only to take effect in the event of death and contained mandatory provisions under inheritance law, they constituted a disposition of property upon death.
With regard to the status of heirs, the Court of Appeal ruled that the daughters were not only entitled to the compulsory portion, but had also become co-heirs alongside the widow, each receiving one third, due to express reservations in the contract. This corresponded to both the legal situation in France at the time and the current legal situation. As the succession could be clearly determined, there was no reason to transfer jurisdiction to France.
The Court of Appeal overturned the decision of the Court of First Instance and referred the case back to the Court of First Instance for a decision.
(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.