OLG Hamm; 2020-05-04; II-13 WF 66/20, 13 WF 66/20
Decision by national courts in the field of European Union law — ECLI:DE:OLGHAM:2020:0504.13WF66.20.00
Date: 2020-05-04
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82020DE0504(51)_ENG_SUMJURE
JURE summary
JURE summary
The case concerned a disclaimer of inheritance established in Poland by a minor domiciled in Germany who became the heir due to its father’s disclaimer of the respective inheritance.
The parents of the child (hereinafter the ‘plaintiffs’) disclaimed the inheritance for their child in the Amtsgericht Münster – Probate court (hereinafter ‘the Court of First Instance A’) first and applied for the approval of disclaimer by a family court.
The Amtsgericht Münster – Family court (hereinafter ‘the Court of First Instance B’) rejected the application stating that such an approval was not necessary in the case. The plaintiffs pursued their request further by lodging an appeal against the decision.
The Oberlandesgericht Hamm (hereinafter ‘the Court of Appeal’) found that the Court of First Instance was not correct in rejecting the application.
The competent courts were the German courts under Article 8(1) of the new Brussels II Regulation (1), as the child was habitually resident in Germany at the time the court was seised. The applicable law relating to asset management in family matters was to be determined under the Hague Convention of 19 October 1996 (2). Articles 14 and 17 thereof stipulate that the exercise of parental responsibility is governed by the law of the State of the child's habitual residence, which was Germany in this case.
Article 1643 of the BGB (3) stipulates that any disclaimer of inheritance made by the parents for the child must be subsequently approved. However, due to the fact that the inheritance could be disclaimed only on the basis of its previous disclaimer made by the father having due care of the child, an exemption was applied, and the approval was not required.
However, under Article 15(2) of the Hague Convention of 19 October 1996, the law of another state may be applied or taken into consideration if required with regard to the protection of the person or the property of the child. In this case, there was a concrete and significant risk that Polish courts would assume that the disclaimer of inheritance was only effective when approved by a family court with the result that the child would indeed receive the inheritance. Therefore, the child was to be protected from receiving a potentially over-indebted estate.
Having considered the Polish law, the Court of Appeal found that it was in the best interests of the child for the required approval to be granted despite the fact that this was not necessary under German law.
The Court of Appeal changed the decision of the Court of First Instance B and the disclaimer of inheritance was approved by the family court.
(1) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.
(2) Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.
(3) Bürgerliches Gesetzbuch (Civil Code).