OGH: On the validity of a European Certificate of Succession

Feb 11, 2022 Benn-Ibler Rechtsanwälte

A certified copy of a European Certificate of Succession within the meaning of Regulation (EU) 650/2012 (Erbrechtsverordnung, EuErbVO) is valid for a period of six months from the date of issue, unless another time limit is specified. If the certified copy is used in proceedings, it is sufficient that it was valid when first presented.

Due to the unclarified material entitlement of the two original opponents of the deed (father and son), a deed consisting of money and securities was made by means of a court order by the depositor, a bank. Subsequently, the father died. Due to the court order, the deed could only be executed upon a joint written request of the opposing parties, which was not available in this case, or due to a final court decision. Due to the father's last habitual residence, the second applicant, his daughter, submitted a certified copy of a European Certificate of Succession in accordance with Spanish law to prove that both daughter and son were heirs; this was marked as "not limited in time".

The lower courts dismissed the application for the surrender of the deed. The certificate had only been issued to the daughter and was only valid for a maximum of six months from the date of issue. The period of validity had already expired at the time of the court's decision.

The European Court of Justice (ECJ) ruled on the basis of a reference for a preliminary ruling by the Supreme Court (Oberster Gerichtshof, OGH) that a remark stating that the deed is of unlimited duration is valid for a maximum of six months and is valid for proceedings, provided that the deed was valid when it was first presented. It does not harm the son's claim that the deed was only issued at the request of the second applicant (his half-sister), because he is also named in this deed and an inheritance quota is itemised.

Ultimately, according to the OGH, such a European Certificate of Succession has effect in all Member States, since it is presumed that the document correctly identifies any heirs, legatees, executors or administrators of the estate. A review of the document should thus have taken place at the issuing authority and not in the pending proceedings.

8 Ob 89/21b (22.10.2021)