R. 84(2), first sentence, EPC provides that in the event of the death or legal incapacity of an opponent the opposition proceedings may be continued by the EPO of its own motion. This means that, with a view to ensuring expeditious handling of the case, they can be continued even without the participation of the opponent's heirs or legal representatives. There is therefore no need to wait for the heirs to be identified and the inheritance to be accepted or for a legal representative to be appointed (T 1533/07).
The appointment by the courts of an insolvency administrator under German law does not mean that the opponent is legally incapacitated within the meaning of R. 84(2), first sentence, EPC. Rather, under German insolvency law the administrator is an ex officio party. By way of a change of party by operation of law, he thus becomes a party to the proceedings, and takes the place of the opponent (T 1533/07, T 917/01).