Differences between legal systems in EU Member States yield a considerable number of problems, particularly in matters of succession.
The death of a European citizen outside their country of nationality raises the question of which law is applicable to their succession. The problem is exacerbated if that person owns property in territories of two or more EU Member States.
In response, the European Parliament approved Regulation 650/2012 on succession (i.e. Brussels IV). Brussels IV is applicable to all Member States, with the exception of the UK, Ireland and Denmark*. It applies to the estates of all individuals dying on or after 17 August 2015. In this article, I consider its key provisions.
In the Regulation, the legal expression 'disposition of property upon death’ only refers to the Will and the agreement as to succession. Brussels IV therefore expressly excludes from its scope other succession-related matters, such as matrimonial property regimes and maintenance rights.
Brussels IV determines that the applicable succession law will, generally (and by default for intestate estates), be that of the deceased’s habitual residence at the time of death.
The applicable law may however be the law of the nationality which the deceased had at the time of making the choice of law, or at the time of death. The choice of law necessarily has to be made in a disposition of property upon death, either expressly or in such a way that it may be inferred in a clear manner. It may be modified or revoked at any time, using the same type of instrument.
Definition of habitual residence
In Brussels IV, 'habitual residence’ is different from the common law concept of 'domicile’. Domicile presupposes objective proof of residence in and integration into another country, and the intention to remain there permanently.
The authority must determine the place where the centre of interests (the centre of activities or the 'existence’ of a person) is located, having regard to factors such as: residence; job location; acquired assets; and conditions of stay.
In the case of testate succession, the testator should therefore state in the clearest possible terms the place of their habitual residence.
States with more than one legal system
Brussels IV addresses the problems that may arise when applied in States that have different laws on matters of succession within their own territory: the country’s own internal conflict-of-laws rules will apply.
Special rules in succession matters
Brussels IV provides a series of special rules relating to succession, outlined in the longer version of this article (see link).
European certificate of succession
The Regulation introduced the creation of a certificate of succession (to be applied for at the individual’s discretion): an authentic instrument establishing succession rights, once the law which is applicable to the deceased has been determined. The rights are those relating to the heir, legatee, and executor of the Will or administrator of the estate.
The certificate has evidentiary effects, needing no further procedures in the State in which it is to produce its effects. Those effects include that of being a valid document for the recording of succession property in the register of a Member State, though it must meet the necessary requirements to proceed with that recording in the State in which the register is located.
The certificate may only be issued by a court, or by public officials who are vested with competence in matters of succession.
Brussels IV is a positive step in resolving the difficulties around succession in the EU. Yet it remains vague, for example it does not define what it means to be habitually resident in a country other than the individual’s nationality.
A central European succession certificate registry is not yet fully operative; one wonders what will happen if contradictory certificates of succession for the same estate are in circulation.
Interaction with other bilateral treaties between EU members which the regulation does not supersede may prove difficult to navigate.
There are also issues of public policy in certain aspects of the regulation such as statutory legacies
The complexity of Brussels IV will make it difficult to apply in practice. Persons residing outside the country of which they are nationals, or who have properties in another Member State, should self-regulate their succession property by making a Will and formally recording their habitual residence.