On 27th July 2012 was published the Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4th 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, which is binding and directly applicable in the Member States.
Let’s summarize the main points of the Regulation.
Scope
The Regulation shall apply to succession to the estates of deceased persons. It shall not apply to revenue, customs or administrative matters.
Jurisdiction
The courts of the Member State in which the deceased had his habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole. However, where the law chosen by the deceased to govern his succession is the law of a Member State, the parties concerned may agree that the courts of that Member State are to have exclusive jurisdiction to rule on any succession matter.
Subsidiary jurisdiction
Where the habitual residence of the deceased at the time of death is not located in a Member State, the courts of a Member State in which assets of the estate are located shall nevertheless have jurisdiction to rule on the succession as a whole in so far as the deceased had the nationality of that Member State at the time of death or, the deceased had his previous habitual residence in that Member State, provided that, at the time the court is seized, a period of not more than five years has elapsed since that habitual residence changed.
Failing the former, the courts of the Member State in which assets of the estate are located shall nevertheless have jurisdiction to rule on those assets.
Applicable Law
Any law specified by the Regulation shall be applied whether or not it is the law of a Member State.
General rule: 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.
Notwithstanding the former, 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. The choice shall be made expressly in a declaration in the form of a disposition of property upon death (i.e. a will, a joint will or an agreement as to succession).
The law determined according to the former shall govern the succession as a whole.
The wills shall be governed, as regards its admissibility and substantive validity, by the law which, under this Regulation, would have been applicable to the succession of the person who made the disposition if he had died on the day on which the disposition was made, i.e. either the law of the State of the habitual residence of the person concerned on that day or, if he had made a choice of law, the law of the State of his nationality on that day. The following elements shall pertain, among others, to substantive validity: the capacity of the person making the disposition, the interpretation of the disposition, and fraud, duress, mistake and any other questions relating to the consent or intention of the person making the disposition.
A will made in writing shall be valid as regards form, if its form complies with the law:
(a) of the State in which it was made;
(b) of a State whose nationality the testator possessed, either at the time when the will was made, or at the time of death;
(c) of a State in which the testator had his domicile, either at the time when the will was made, or at the time of death;
(d) of the State in which the testator had his habitual residence, either at the time when the will was made, or at the time of death; or
(e) in so far as immovable property is concerned, of the State in which that property is located.
A declaration concerning the acceptance or waiver of the succession, of a legacy or of a reserved share, or a declaration designed to limit the liability of the person making the declaration, shall be valid as to form where it meets the requirements of the law applicable to the succession or the law of the State in which the person making the declaration has his habitual residence.
Recognition, enforceability and enforcement of decisions
A decision given in a Member State shall be recognised in the other Member States without any special procedure being required.
However, a decision shall not be recognised in some cases, for example: if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought; where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings in sufficient time and in such a way as to enable him to arrange for his defence; or if it is irreconcilable with a decision given in proceedings between the same parties in the Member State in which recognition is sought.
Authentic instruments and court settlements
An authentic instrument established in a Member State shall have the same evidentiary effects in another Member State as it has in the Member State of origin, provided that this is not manifestly contrary to public policy in the Member State concerned.
An authentic instrument or a court settlement which is enforceable in the Member State of origin shall be declared enforceable in another Member State on the application of any interested party in accordance with the procedure provided for in Articles 45 to 58 of the Regulation.
European Certificate of Succession
The Regulation creates a European Certificate of Succession, whose use shall not be mandatory, and shall be issued for use by heirs, legatees having direct rights in the succession and executors of wills or administrators of the estate who, in another Member State, need to invoke their status or to exercise respectively their rights as heirs or legatees and/or their powers as executors of wills or administrators of the estate.
It should be for each Member State to determine in its internal legislation which authorities are to have competence to issue the Certificate, whether they be courts or other authorities with competence in matters of succession,
The Certificate may be used to demonstrate one or more of the following:
(a) the status and/or the rights of each heir or legatee and their respective shares of the estate;
(b) the attribution of a specific asset or specific assets forming part of the estate to the heir(s) or, as the case may be, the legatee(s) mentioned in the Certificate;
(c) the powers of the person mentioned in the Certificate to execute the will or administer the estate.
The Certificate shall produce its effects in all Member States, without any special procedure being required.
Transitional provisions and entry into force
The Regulation shall apply to the succession of persons who die on or after 17th August 2015. Where the deceased had chosen the law applicable to his succession prior to 17th August 2015, that choice shall be valid if it meets the conditions laid down in the Regulation or if it is valid in application of the rules of private international law which were in force, at the time the choice was made, in the State in which the deceased had his habitual residence or in any of the States whose nationality he possessed.
Salvador Manzano Valverde
Abogado
salvadormv@serveco.es