The EU Succession Regulation

Jody Atkinson

St John’s Chambers

Introduction

Regulation (EU) 650/2012 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 (AKA Brussels IV, AKA the Succession Regulation).

Introduction (2)

A83 (1) This Regulation shall apply to the succession of persons who die on or after 17 August 2015.

But important transitional provisions apply to wills executed before then.

Euroscepticism

The UK, Ireland and Denmark opted out of the succession regulation.

So in England and Wales the law remains unchanged.

Habitual Residence.

Appears in other EU Regulations.

Marinos v Marinos [2007] EWHC 2047 [2007] 2 FLR 1018

‘Autonomous’. One looks to the ECJ case law, not domestic cases on habitual residence.

Habitual Residence (2)

‘it does not have to be permanent. It needs to be habitual. The emphasis is on a person's centre of interests. The verb used is “established” and all relevant factors are to be

taken into account. But there is nothing beyond any degree of length of time in the words used, except as can be ascribed to the word “established”. One can establish

something very quickly, or it may take time to establish.

Once a situation is firm it is established.'

Habitual Residence (3)

‘Autonomous’. Habitual residence needs to be interpreted in the context of the regulation it appears in.

Recitals 23 – 25 of the regulation.

‘The habitual residence thus determined should reveal a

close and stable connection with the State concerned taking into account the specific aims of this Regulation.’

Habitual Residence: Examples

(1) Short term contract.

(2) Wife moves to new country with children, intending to live there.

(3) Indefinite job abroad, but intention to return and substantial links.

Domicile

A substitute for nationality.

Every person receives at birth a domicile of origin.

Every independent person can acquire a domicile of choice

by the combination of residence and an intention of

permanent or indefinite residence, but not otherwise.

Domicile (2)

‘Domicile of choice is a conclusion or inference

which the law derives from the fact of a man

fixing voluntarily his sole or chief residence in a

particular place, with an intention of continuing to

reside there for an unlimited time.’ Udny v Udny

(1869) LR 1 Sc & D 441.

Domicile: Example

Italian man, moves to England and has his business and marital home there. But never learns English very well, owns property in Italy, and states wants to be buried in Italy.

Law of Succession:

Intestate Succession.

Formal Validity.

EU choice of law provision.

Essential/Material Validity.

Administration of Estates.

Intestate Succession: EU

‘21(1) Unless otherwise provided for in this

Regulation, the law applicable to the succession

as a whole shall be the law of the State in which

the deceased had his habitual residence at the

time of death.’

EU Exception

21(2) ‘Where, by way of exception, it is clear

from all the circumstances of the case that, at the

time of death, the deceased was manifestly

more closely connected with a State other than

the State whose law would be applicable under

paragraph 1, the law applicable to the succession

shall be the law of that other State.’

EU Succession: Example

Wolfgang buys a villa in Italy, and spends almost all his time there until his death. He remains involved in the running of his family business in Germany, and retains a sizeable house in Stuggart.

Intestate Succession: England

Succession to the movables of an intestate is governed by the law of his domicile at the time of his death.

Succession to the immovables of an intestate is governed by the law of the country where they are situated (lex situs).

Intestate Succession (2)

Re Collens, Royal Bank of Canada (London) Ltd v Krogh [1986] Ch 505

Hard to justify.

Testate S’n: Formal Validity

UK and EU Positions the same : )

Hague Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions (Hague 11).

Wills Act 1963

Article 75 (all but Portugal and Italy, but Article 27 very similar)

Hague Rules

The law of testators domicile, either at the time of its execution or of the testator's death,

or law of testators habitual residence, either at the time of its execution or of the testator's death,

Hague Rules (2)

or law of testator’s nationality, either at the time of its execution or of the testator's death.

The law of the locality at the time and place where it was executed.

Planes and Boats

Boats and Planes also count as being in the location where to which they are most closely connected.

Formal Validity: Example

�Hans, your wealthy German client, feels ill while on holiday in the Bahamas, and attempts to make a will, but it isn’t witnessed. Shortly afterwards he dies. He lives in the Cotswolds, but is domiciled in Monaco for tax purposes.

EU Choice of Law Provision.

22(1). ‘A person may choose as the law to

govern his succession as a whole the law of the

State whose nationality he possesses at the

time of making the choice or at the time of death.

A person possessing multiple nationalities may

choose the law of any of the States whose

nationality he possesses at the time of making the

choice or at the time of death.’

How do you choose?

22(2). The choice shall be made expressly in a

declaration in the form of a disposition of property

upon death [a will] or shall be demonstrated by the terms of such a disposition [eg. reference to

English statutes].

22(3). The substantive validity of the act whereby

the choice of law was made shall be governed by

the chosen law [so if you want to chose English

law the will has to be valid under English law].

Important Transitional Provision

83(4). ‘If a disposition of property upon death was made prior to 17 August 2015 in accordance with the law which the deceased could have chosen in accordance with this Regulation, that law shall be

deemed to have been chosen as the law applicable to the succession.’

Material Validity: Unitary

A24 and A26 the chosen law will apply as regards all issues:

Mental Capacity,

Barring/forfeiture (eg. gifts to witnesses),

Interpretation of the disposition,

Undue influence/duress etc.,

Administration of estates (order of debts)

But Member States whose law requires an administrator

may still appoint an administrator.

Forced Heirship

A30 ‘Where the law of the State in which certain

immovable property, certain enterprises or other special categories of assets are located contains special rules which, for economic, family or social considerations,

impose restrictions concerning or affecting the succession

in respect of those assets, those special rules shall apply to

the succession in so far as, under the law of that State,

they are applicable irrespective of the law applicable to the

succession.’

EU Choice of Law: Example

Frank moves to Spain, and owns a villa there. He dislikes his children and instructed his English solicitor to draw up a will leaving everything to his brother.

England: Material Validity

You do not get to choose.

The material or essential validity of a will of

movables or of any particular gift of movables

contained therein is governed by the law of the

testator’s domicile at the time of his death.

Lambton (Earl of Durham) v Lambton [2013]

EWHC 3566

Material Validity: England (2)

The material or essential validity of a will of immovables or of any particular gift of immovables contained therein is governed by the law of the country where the immovables are situated.

Re Oglivie [1918] 1 Ch 492

Material Validity: England (3)

A will is to be interpreted in accordance with the law intended by the testator. In the absence of indications to the contrary this is presumed to be the law of his domicile at the time when the will is made.

NB date of execution not date of death.

Curati v Perdoni [2012] EWCA Civ 1381

Forced Heirship in England.

• Freedom of testamentary disposition.

• But we do have the Inheritance (Provision for Family and Dependants) Act 1975.

• Only applies to the estates of persons who died domiciled in England.

• This produces injustice, but reforms were mysteriously blocked.

EU Administration of Estates

A4 General jurisdiction is with the courts of the state of habitual residence.

A6 Where the deceased has chosen the law of a member state, the court of habitual residence may/must decline jurisdiction.

EU Administration of Estates (2)

A10 Where deceased not habitually resident in a Member State, the courts of a Member State where he has leaves assets will have residual jurisdiction over those assets (or his entire succession if a national of that Member State).

EU Conflicts of Law

The second court seised stays its proceedings while the first court in time examines whether it has jurisdiction (A14-18).

European Certificate of Succession

This is issued by the Member State with

jurisdiction. A62-73

It demonstrates: the rights of each heir/legatee,

and their respective shares.

The attribution of specific assets to the

heirs/legatees

The powers of a person to execute the will or

administer the estate.

European Certificate of Succession (2)

‘The Certificate shall produce its effects in all

Member States, without any special procedure

being required’ A69(1).

The issuing authority must take all necessary steps

to inform the beneficiaries and hear any person

involved, and make public announcements.

Challenges must be to the issuing member state.