OLG Frankfurt; 2022-10-24; 21 W 81/22
Decision by national courts in the field of European Union law — ECLI:DE:OLGHE:2022:1024.21W81.22.00
Date: 2022-10-24
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82022DE1024(51)_ENG_SUMJURE
JURE summary
JURE summary
The second wife, domiciled in Germany (hereinafter ‘the plaintiff’) of a deceased Swedish citizen having his last habitual residence in Germany (hereinafter the ‘deceased’), applied for the issuance of a European Certificate of Succession due to her position as the sole heir based on a testament.
The two children of the deceased from his first marriage, who were domiciled in Sweden and were parties to the proceedings, contested the plaintiff’s application arguing that the courts holding jurisdiction were the Swedish courts. The property subject to the inheritance was located in Germany. The fact that the deceased had lived prior to this death in Germany for a long time did not change anything. In addition, there were pending proceedings in Sweden as to the appointment of an administrator of the estate.
The Amtsgericht Frankfurt am Main (hereinafter ‘the Court of First Instance’), as the court seised, expressed doubts as to the international jurisdiction and referred to the choice of law made by the deceased favouring the application of Swedish law. The children of the deceased applied for a decision under Article 6(a) of Regulation (EU) No 650/2012 (1), stating that the Swedish courts were better placed to rule on succession under Swedish law.
The Court of First Instance found itself to be lacking international jurisdiction according to Article 6(a) of the Regulation (EU) No 650/2012 stating that the deceased made an effective choice of law favouring the Swedish laws. Two of the three parties to the proceedings were domiciled in Sweden and the disputed plot of land was also located in Sweden.
The appeal lodged by the plaintiff against the decision of the Court of First Instance with the Oberlandesgericht Frankfurt (hereinafter ‘the Court of Appeal’) was found admissible and substantiated but was not successful.
The court holding jurisdiction under Article of the Regulation (EU) No 650/2012 may declare itself to be not competent due to lack of jurisdiction if it considers that the courts of the chosen law, e.g. the Swedish courts in this dispute, were better placed to make a decision in the respective inheritance matter. When making such a decision, the specific circumstances of the case were to be taken into account, such as the habitual residence of the parties and the location of the assets.
In addition, there were no doubts that the deceased chose Swedish law to be the applicable law for the succession proceedings after his death. The assumption that the Swedish courts were better suited to decide the case could also not be objected to.
The Court of Appeal dismissed the appeal of the plaintiff.
(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.