BGH; 2021-02-24; IV ZB 33/20
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2021:240221BIVZB33.20.0
Date: 2021-02-24
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82021DE0224(51)_ENG_SUMJURE
JURE summary
JURE summary
Participants 1 and 2 (hereinafter ‘the plaintiffs’) applied for the issuance of a certificate of succession which would state that they became the only two heirs with 50 % share each of the estate of a deceased person and that participants 3, 5 and 6, as children of the deceased and sister of the deceased person (hereinafter ‘the defendants’) did not have any claim regarding the inheritance.
The deceased, a German citizen, and her Austrian husband had their last habitual residence in Bad Reichenhall, Germany, and had made two separate but practically identical, by their own hand written and signed documents named ‘the joint last will’. They made each other the sole heir. After the death of both testators, the defendants were supposed to be the joint final heirs. In 2013, however, the deceased person made a new will stating that her house, inventory and cash assets were to be inherited by the plaintiffs.
The Amtsgericht Laufen (hereinafter ‘the Court of First Instance’) dismissed the application of the plaintiffs, stating that the succession was subject to the joint last will made in 1996.
The appeal of the plaintiffs lodged with the Oberlandesgericht München (hereinafter ‘the Court of Appeal’) was dismissed. The admissibility of the joint last will, which constituted a contract under the law of the European Union, was under Article 83(3)(first alternative) of Regulation (EU) No 650/2012 (1), and subject to German law as the law of the state where both the wife and the husband had their habitual residence.
The revision filed by the plaintiffs with the Bundesgerichtshof (hereinafter ‘the Supreme Court’) against the decision of the Court of Appeal was not successful.
Despite the fact that the deceased person and her husband had not expressly determined the applicable law, the Court of Appeal was correct to find that they impliedly chose the German law to have a binding effect. This followed in particular from the use of specific terms and means used under the law of Germany, such as the term ‘final heir’, which exists in German, but not the Austrian law, or the provision that after the death of a deceased spouse, the surviving spouse may not change the succession or the legacy. The deceased person and her pre-deceased husband referred to the provisions of German law, as the law of Austria does not foresee any obligation of the surviving spouse to be bound by the joint last will. The choice of law made impliedly under Article 22(2) of Regulation (EU) No 650/2012 is to be interpreted autonomously under the law of the European Union. In this case, the parties impliedly chose German law.
The Supreme Court dismissed the revision of the plaintiffs 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.