country issuing it (France) but also (in this
example) Germany and Spain.
The Regulation will apply to the
succession of persons who die on or after
17th August 2015 although there are
certain transitional provisions which are
now in force and mean that if a person
chooses the succession law which will be
applicable prior to 17th August 2015 that
choice will be valid, subject to it complying
with the provisions of the Regulation. The
Regulation is binding on all 27 EU member
states (and here is the bad news!) except
for the UK, Ireland and Denmark, although
the UK and Ireland do have the option to
opt in in the future.
The reason why the UK government
decided not to opt in is because it would
have meant the UK having to apply
“claw back” provisions in the UK which
it considers would cause too much
uncertainty in relation to lifetime gifts.
(The law of some of the Member States
of the EU requires a fixed proportion of
the estate of the deceased to be given
to certain persons (reserved heirs) and
allows for the reserved heirs to recover
assets that have been given away
during the lifetime of the deceased in
circumstances where the lifetime gift is
in excess of the fixed proportion of the
deceased’s estate.)
Does Brussels IV therefore have any
relevance to UK nationals? The short
answer is yes. Anyone habitually resident
in France could make a French Will
determining UK law to apply and in so
doing would avoid French inheritance
rules applying to their estate. (Any choice
of law provision would have to state
“UK” law as that is the State relating to
the nationality of British subjects but as
between English, Northern Irish and
Scottish law Article 36 of the Regulation
provides a mechanism for resolving the
question: if you wished English law to
apply it would be as well to specify in your
Will that you were born or brought up in
England). In these circumstances and, in
so far as there are assets located in any
Member State (apart from the UK and
Denmark) they may be administered on
the basis of documentation issued by a
French Notaire or French Court, applying
English law. However whilst the Regulation
does provide those UK nationals who are
habitually resident in France with the ability
to choose the applicable law and thereby
enable those with both their own children
and step children to treat their stepchildren equally with their own children,
the Regulation may not assist where there
are still assets in UK. Article 39 provides
that “a decision given in a Member State
shall be recognised in the other Member
States without any special procedure
being required.” However because the UK
has not opted in to the Regulation it is not
bound by it or subject to its application.
Therefore where a UK national who is
habitually resident in France has chosen
UK law to apply to his estate it may still be
necessary to obtain a UK grant of probate
to administer any UK assets.
For anyone habitually resident in the
UK who own