New EU rules on
inheritance
After many years in
gestation, EU Regulation
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” which is also
referred to, more simply, as
“Brussels IV” was adopted
on 4th July 2012.
The purpose of Brussels IV is to facilitate
the free movement of persons within the
EU by removing the obstacles faced by
EU citizens in asserting their rights in
the context of cross-border successions
(where assets of the deceased ar e
situated in different countries). In particular
it provides certainty as to which law will
apply in governing a succession and also
enables persons to choose the law of
the country of their nationality to govern
their succession. It applies to both testate
successions (where a Will has been drawn
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up) and intestate successions (where
there is no Will) but does not include tax
matters.
For anyone who has had the misfortune
to be involved with a cross-border estate it
can be a complex and frustrating process
not least because the inheritance laws of
different countries may apply to different
assets in the estate. The Regulation
now provides a general rule that 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” unless the deceased
(prior to his death!) chose the law of the
State of which he was a national to apply
in accordance with Article 22. Article 22
provides “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.”
Furthermore the effect of Article 20 is
that the law chosen does not need to be
the law of another Member State which
would therefore enable, for example,
an Australian national who is habitually
resident in France (for the purposes of
the Regulation) to choose Australian law
to apply to his estate. Article 23 provides
that whichever law applies will govern the
succession as a whole.
There is no definition of “habitual
residence” in the Regulation although
guidance can be taken from Recital 23
of the Regulation which states: “In order
to determine the habitual residence, the
authority dealing with the succession
should make an overall assessment
of the circumstances of the life of the
deceased during the years preceding
his death and at the time of his death,
taking account of all relevant factual
elements, in particular the duration and
regularity of the deceased’s presence in
the State concerned and the reasons for
that presence. 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.”
Article 4 of the Regulation provides that
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. The
Regulation also sets out a mechanism
for the issue of European Certificates of
Succession. These will be issued by the
authorities in the Member State in which
the deceased was habitually resident
and will provide proof of entitlement in
the estate to all Member States. For
example, the beneficiaries of a German
National, who dies habitually resident in
France, with assets in France, Germany
and Spain will be able to deal with all the
assets on the basis of the one Certificate
which will be recognised not only in the