OLG Hamm; 2019-12-17; I-15 W 488/17, 15 W 488/17
Decision by national courts in the field of European Union law — ECLI:DE:OLGHAM:2019:1217.15W488.17.00
Date: 2019-12-17
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82019DE1217(51)_ENG_SUMJURE
JURE summary
JURE summary
The Oberlandesgericht Hamm (hereinafter ‘the Court of Appeal’) dealt with a dispute regarding the international jurisdiction for issuing a European certificate of succession.
A participant applied with the Amtsgericht Steinfurt (hereinafter ‘the Court of First Instance’) for issuing a European certificate of succession. The Court of First Instance referred the case to the Court of Appeal, which established the last habitual residence of the deceased person, who was a German citizen and died in Spain.
As of 17 August 2015, the international jurisdiction in succession matters having cross-border implications followed solely from Article 4 ff. of the Succession Regulation (1) in connection with Article 97 FamFG (2). The Succession Regulation is a European Act having priority over the provisions of the FamFG. The last habitual residence of the deceased could have been, in this case, either in Spain or in Germany.
The deceased maintained, in neither of these countries, relevant social contacts. He was neither integrated into Spanish society nor had he any noteworthy social contacts in Germany outside his family, the environment of this son and his religious community. He owned an extensive portfolio of real properties in Spain and kept several bank accounts in Germany. With respect to this ambivalent background, the Court of Appeal expressed the opinion that the duration of the stay within the individual country was decisive for determining his last habitual residence.
The Court of Appeal stated that in recent years, the deceased had stayed mostly in Spain and that his travels to Germany were mostly due to his tumour treatment and that the deceased wished to be brought back to Spain shortly before his death. Therefore, the Court of Appeal concluded that the German courts did not hold international jurisdiction for issuing a European certificate of succession.
The Court of Appeal dismissed the appeal of the participants citing a lack of international jurisdiction for the issuance of a European certificate of succession on the part of the German the Court of First Instance.
(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.
(2) 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).