OLG Frankfurt; 2020-05-26; 21 SV 2/20
Decision by national courts in the field of European Union law — ECLI:DE:OLGHE:2020:0526.21SV2.20.00
Date: 2020-05-26
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82020DE0526(51)_ENG_SUMJURE
JURE summary
JURE summary
The Oberlandesgericht Frankfurt (hereinafter ‘the Court of Appeal’) dealt with a case concerning the international jurisdiction for the announcement of the last will deposited and opened in Germany, which was made by a German citizen who had lived during his last years, and died abroad.
The deceased, a German person with his last habitual residence in Thailand, died in 2018. His last habitual residence in Germany was in the town of Lichtenfels. The deceased made his last will on 25 September 1996 in the form of a notarial deed. Subsequently, the deceased deposited the last will with the Amtsgericht Gelnhausen (hereinafter ‘Court of First Instance 1’). After the death of their father, the daughters of the deceased refused the inheritance by making a declaration towards the Amtsgericht Lichtenfels (hereinafter ‘Court of First Instance 2’). The Court of First Instance 2 forwarded the declaration of refusal to the Court of First Instance 1, which subsequently opened the last will of 25 September 1996 and referred the proceedings to Amtsgericht Berlin-Schöneberg (hereinafter ‘Court of First Instance 3’). The Court of First Instance 3 found itself not to hold the jurisdiction and referred the case back to the Court of First Instance 1, which then approached the Court of Appeal to determine the competent inheritance court.
According to Article 343(2) of the FamFG (1), the local jurisdiction is determined by the last habitual domestic residence of the deceased, which was Lichtenfels in this case. The provisions of the Succession Regulation (2) regarding jurisdiction do not apply for the opening of last wills, as the opening of the last will deposited in a special official custody did not represent a decision regarding the succession as a whole under Article 4 of the Succession Regulation.
The Court of Appeal found that Court of First Instance 2 was competent to open the proceedings under Article 348(3) of the FamFG and also held the international jurisdiction pursuant to Article 105 of the FamFG. Even if the international jurisdiction of a German court for opening the last will had not followed from Article 105 of the FamFG, the principle of Forum would have been applicable as the respective proceedings could not be reasonably conducted in a third State (Thailand in this case).
For the above reasons, the Court of Appeal determined that the local jurisdiction for conducting further proceedings should be held by Court of First Instance 2.
(1) Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction).
(2) 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.