Saarländisches Oberlandesgericht Saarbrücken; 2024-01-24; 5 U 8/23
Decision by national courts in the field of European Union law — ECLI:DE:OLGSL:2024:0124.5U8.23.00
Date: 2024-01-24
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82024DE0124(51)_ENG_SUMJURE
JURE summary
JURE summary
Following the death of his father, a German private individual (hereinafter ‘the plaintiff’) primarily sought the fulfilment of a testamentary bequest from his brother (hereinafter ‘the defendant’). This related to two properties located in France, the transfer of which he demanded. In the alternative, he asserted claims to a compulsory portion of heritage by way of an action by stages, as well as preparatory claims for information and affidavits.
The plaintiff argued that the parents had unanimously expressed their wish to treat both children equally in several last wills and testaments. As early as 1989, they had concluded an inheritance contract and excluded the plaintiff by waiving his inheritance and compulsory portion. However, they later made bequests in his favour in joint wills and identical individual documents from 2008 and 2009. These contained a tacit choice of German law, as the spouses were German nationals and had drafted their dispositions in German with reference to institutions of German inheritance law. Furthermore, the father’s contestation of the wills in 2014 was invalid, as there was neither a relevant error nor any other grounds for contestation.
The defendant claimed that the parents had clearly designated him as the sole heir and had deliberately wanted to exclude the plaintiff permanently. The notarised contestation from 2014 was valid and based on repeated misconduct on the part of the plaintiff. Furthermore, the documents in question from 2008 and 2009 were not joint wills, but merely individual wills without any interdependence.
The Landgericht Saarbrücken (hereinafter ‘the Court of First Instance’) dismissed the action. Although it established the international jurisdiction of German courts under Article 4 of the Succession Regulation (1), it denied an effective claim to the bequest. The wills of 2008 and 2009 were not to be regarded as joint wills, as they had been drawn up in separate documents without sufficient evidence of a joint declaration. In the absence of interdependence, the testator had been able to revoke the dispositions in 2015 effectively. The alternative action by stages was also unfounded, as the waiver of the compulsory portion from 1989 remained in force.
The plaintiff lodged an appeal with the Oberlandesgericht Saarbrücken (hereinafter ‘the Court of Appeal’). The Court of Appeal ruled in favour of the appeal and amended the judgment of the Court of First Instance. It ordered the defendant to consent to the transfer of the two French properties to the plaintiff and to approve their entry in the land register.
The documents dated 2 and 4 January 2009 constituted a joint will despite having been drawn up separately. The decisive factor is the recognisable common intention of the spouses to make a uniform declaration. Both documents were drawn up at almost the same time in the same place, have identical content and aim to treat the children equally. In addition, the spouses implicitly chose German law, which was clearly evident from the language, terminology and reference to German compulsory inheritance law.
There was no effective challenge by the father, as his declaration of 2014 expressly referred to other wills, and no reference to the joint will of 2009 could be identified.
(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.