The EU Regulation on Succession Law known as Brussels IV became law in August 2015. It provides a uniform system of recognition of succession laws, based primarily on the deceased\’s habitual residence. No distinction is made between movable assets and immovable assets.
The Regulation governs the conflict of law rules for succession both testate and intestate between EU States who are bound by the Regulation. The broad principle of the Regulation is that the succession laws of the Member State in which the deceased was habitually resident, apply.
Ireland and the United Kingdom have opted out of the Regulation. This Regulation however remains significant for Irish resident and domiciled persons with assets in other EU States. This is particularly relevant given the large, significant property investment and personal property holdings by Irish citizens in Spain and other states.
Forced heirship rules in this context refers to the obligation to leave a proportion of one’s estate to particular categories of beneficiary, usually children and/or a spouse. In Ireland, there is a relatively light forced heirship rule. There is a legal right share of spouse, entitles a spouse to use to one third of the deceased\’s net assets irrespective of the provisions of the will. There is the possibility of a discretionary award, in favour of children, whereby a on application to court, it may make provision on the basis that the deceased has failed in his or her moral obligation to provide for them.
In France Spain, and other continental countries, a high proportion of assets is required to be left to particular beneficiaries. Children have significant fixed shares in many continental jurisdictions. There are rules to defeat the lifetime avoidance of these mandatory shares. In recent years the rights of spouses have increased significantly in France.
Matrimonial property regimes and joint tenancy and not subject to the Succession Regulation. Lifetime transfers are not subject to the Regulation. Rules such as survivorship apply in accordance with the law of the relevant State, in the case of immovable property, irrespective of the Regulation.
The common law position still applies in Ireland. In broad terms, succession is determined by the domicile of the deceased in the case of movables. In the case of immovables, i.e. real property, it is determined by their location, the law of the place of their location.
The Regulation allows a testator to apply the law of his nationality by way of exception to the general principle that his habitual residence determines the position. In this case, the law of the state concerned and not its public international law (which may refer back to another jurisdiction; typically that of their habitual residence) apply.
Under principles of renvoi, a court may refer to the conflict of law rules of another State. This may in turn refer back to the domestic court, leading to an apparently circular position.
Where the Irish court applies the whole of the law of the foreign country, it will refer back to that country\’s private international law and the Irish courts may accept the renvoi and apply Irish internal law.
Where there are Irish immovable assets, Irish private international law applies to determine which law should apply. This applies where there is Irish jurisdiction, not necessarily limited to Irish immovable property.
Renvoi is abolished by the EU Regulation as between the states who are party. If the applicable law is that of a non-regulation state, the private international laws of that state are included, in so far as they lead to renvoi to the participating state or the law of another state. It is unclear if the non-participating EU states are third States for this purpose, although it is likely to be the position.
There is provision for a European certificate in succession matters. It harmonises the rules on jurisdiction relating succession within the EU. It deals with the recognition and enforcement of decisions and the acceptance and enforcement of authentic instruments in succession matters.
It provides for a certificate of succession to be used by heirs, legatees and executors of wills and administrators to invoke their status or exercise their rights in other EU States. This is the equivalent of a grant of probate or letters of administration.
The courts of the State in which the deceased had his habitual residence at the time of death have jurisdiction to rule on succession as a whole.
Where the habitual residence of the deceased is not in an EU State, the court of the EU State in which the assets of the estate are located has the jurisdiction to rule on succession provided that the deceased had the nationality of that state at the time of death or his previous habitual residence is in that State provided that at that time, the court is seised of the matter, no more than five years have elapsed since the habitual residence changed.
Where the deceased has made a choice of law under the regulation and the law chosen by the deceased is that of an EU State, the parties concerned may agree that the courts of that State are to have exclusive jurisdiction to rule in any succession matter.
The courts of an EU country in which the deceased had his habitual residence at the time of death. may decline jurisdiction to govern succession if it considers the courts of the state chosen are better placed to rule on succession taking into account the practical circumstances of succession, such as the habitual residence of the parties and the location of the assets.
The courts of the EU State, whose law has been chosen by the deceased, shall have jurisdiction if:
- under specific conditions laid down in the Regulation, the court previously seised has declined jurisdiction in the same case;
- the parties to the proceeding have agreed to confer jurisdiction on the courts of that State;
- the parties to the proceedings have expressly accepted the jurisdiction of court seised.
Unless otherwise provided for under the Regulation, the law applicable to succession as a whole is the law of the country in which the deceased had his habitual residence at the time of death.
A person may choose the law to govern a succession, the law of the country whose nationality he possesses at the time of making the choice or at the time of death. A person with multiple nationalities may choose the law of any of the countries whose nationality he possesses.
The chosen law governs in particular,
- causes, time and place of opening of the succession;
- determination of the beneficiaries of their respective shares and of their obligations imposed on them by the beneficiary and the determination of other succession rights;
- the capacity to inherit;
- disinheritance and disqualification by conduct;
- transfers to the heirs and as the case may be to the legatees of assets, rights and obligations forming part of the estate;
- the powers of heirs, the executor of the wills and/or administrators of the estate without prejudice to specific rules on the appointment and power of the administrator of an estate in certain situations;
- liability for the debts under the succession;
- the disposable part of the estate, the reserved shares and other restrictions on disposal of the property upon death
- others claims which persons close to the deceased may have against the estate or the heirs;
- any obligation to restore or account for gifts, advancements or legacies when determining the shares of different beneficiaries;
- the sharing out of the estate.
Decision given in one EU State shall be recognised throughout the EU without any special procedure being required. Decisions enforceable in the EU State where they have been given, shall be enforceable in another State where on the application of an interested party, they have been declared enforceable there by the local court or competent authority.
Authentic instruments established in an EU State have the same evidentiary effect in another State as in the state where they have been established or the most comparable effects provided that this is not manifestly contrary to public policy in the EU State concerned.
Authentic instruments enforceable in the EU State where they are established shall be enforceable, when on the application of an interested party, they have been declared enforceable there by the local court or competent authority.
The Regulation creates a European certificate of succession. It is for use by heirs, legatees and others having direct rights in the succession and executors of wills and administrators of the estate, who in another State need to invoke their status or exercise their rights as heirs and legatees and their powers as executors of wills or administrators of the estate. Once issued, it is effective in all EU States without any special procedure being required. The provisions apply to persons dying after 17 August 2015.
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