On the interpretation of Section 35 (1) sentence 2 GBO in the case of a compulsory portion penalty clause - disagreement among OLGs

Is a notarized will (or contract of inheritance) sufficient or is a certificate of inheritance required in the land register procedure? This question is answered by Section 35 (1) sentence 2 of the Land Register Code (GBO). Such a disposition of property upon death can prove the succession for land register purposes, unless the land register office does not consider the succession to be proven by these documents. Contrary to what the wording suggests, there is no discretion here, but rather a multitude of court decisions and guidelines. A much-discussed problem arises, for example, if there is an inheritance contract ("Berlin will" - reciprocal appointment of heirs, appointment of children as final heirs), but this contains a so-called compulsory portion clause (anyone who claims the compulsory portion against the will of the longest-living person after the first succession is also excluded after the succession of the longest-living person). If both parties to the contract are then deceased, the final heirs are basically duly designated. However, the question arises as to how the "negative fact" (non-assertion of compulsory portion) can be proven. There are two contradictory recent decisions here (OLG Schleswig 16.08.2024 and OLG Frankfurt 12.09.2024). The disagreement centers on whether an affidavit can be required. We are curious to see if and when the BGH will decide this.