OLG München; 2022-06-22; 31 AR 73/22
Decision by national courts in the field of European Union law — ECLI:DE:OLGMUEN:2022:0622.31AR73.22.15
Date: 2022-06-22
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82022DE0622(51)_ENG_SUMJURE
JURE summary
JURE summary
This case concerns the question of local jurisdiction based on a deceased person’s habitual residence, which was decided by the Oberlandesgericht München (hereinafter ‘the Court of Appeal’).
The central issue in this case was the determination of the ‘gewöhnlicher Aufenthalt’ (habitual residence) of the deceased at the time of death, which affects the local jurisdiction for probate matters. The heirs disputed whether the deceased’s habitual residence was still in Munich, where he had lived and worked for many years, which would suggest the jurisdiction of the Amtsgericht München (hereinafter ‘the Court of First Instance Munich’), or whether it had changed to the place where he had moved to live with his brother and sister-in-law for medical reasons, which would suggest the jurisdiction of the Amtsgericht Heilbronn (hereinafter ‘the Court of First Instance Heilbronn’).
The Court of Appeal relied on Article 4 of Regulation (EU) No 650/2012 (1) and Article 343(1) of the FamFG (2), which emphasise the importance of the habitual residence at the time of death in determining jurisdiction. It concluded that habitual residence includes both the physical presence in a place and the intention to remain there. In the present case, the deceased had moved to live with his relatives because of the need for care due to his serious illness, which constituted a significant change in his life circumstances.
Although the deceased had intended to return to Munich upon recovery, this was considered unrealistic given his medical condition and the need for constant care, which reinforced the change of habitual residence. The Court of Appeal noted that the deceased’s move was not a temporary arrangement but a substantial change driven by his health needs, thus establishing a new habitual residence despite the retained apartment in Munich. The Court of Appeal emphasised that the subjective intention (desire to return) cannot override the objective reality of the deceased’s situation and the requirements for determining habitual residence under Regulation (EU) No 650/2012. A mere intention to return to a former residence is not sufficient to establish habitual residence if it is not grounded in practical and realistic expectations.
The Court of Appeal held that the deceased’s habitual residence at the time of his death was determined by the place where he had moved to receive care and not Munich, where he retained an apartment. Therefore, the local jurisdiction for probate matters was assigned to the Court of First Instance Heilbronn.
(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).