Regulation (EU) No 650/2012 of The European Parliament and of The Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions, acceptance and enforcement of authentic instruments in matters of succession, and on the creation of a European Certificate of Succession will hereinafter be referred to as “Brussels IV” or “the Regulation.” The scope of the Regulation is to simplify matters and offer predictability and uniformity.
The Regulation applies to the succession of persons whose death is on or after the 17th of August 2015. Brussels IV is directly applicable in all EU Member States, excluding the United Kingdom, Ireland, and Denmark. For the Regulation to have effect, the deceased (decujus) and/or his estate must be connected to more than one country, and one of the countries must be an EU Member State that is applying the Regulation. Article 20 grants the Regulation universal application, stating that “Any law specified by this Regulation shall be applied whether or not it is the law of a Member State.”
Brussels IV applies to succession to the estate of deceased persons, with regard to all forms of transfer of assets, rights and obligations by reason of death – whether by will, joint will or an agreement as to the succession, which can be testate or intestate. The Regulation is however not applicable to revenue, customs, and administrative matters. Additionally the following are specifically excluded from the scope of the Regulation:
- The status of natural persons and their legal capacity, and the disappearance, absence and presumed deaths of natural persons;
- Matrimonial property and maintenance obligations;
- Formal validity of oral dispositions of property upon death;
- Assets, interest, and property rights created or transferred other than by succession;
- Matters governed by the law of companies and other bodies, including their dissolutions, extinction and merger;
- The creation, administration, and dissolution of trusts;
- The nature of rights in rem; and
- Recording in property registers.
Unless the Regulation provides otherwise, the general rule is that the applicable law 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. This is deemed to be the location of the centre of vital interests and the location of assets, and should reveal a close and stable connection with the relevant State.
In determining the last habitual residence of the deceased, authorities should make an overall assessment of the circumstances of the life of the deceased, as well as take into account all relevant factual elements. The latter includes the duration and regularity of the deceased’s presence in the relevant State, and the conditions and reasons for that presence. This can prove to be problematic when the deceased has lived & worked in another State while keeping a close connection with the State of origin; or when the deceased lived in several States without permanently settling in any of them.
If the circumstances clearly show that at the time of death the deceased was manifestly more closely connected with a State other than that of his/her habitual residence, then the law of that State shall apply.
Choice Of Law
The testator can choose the law applicable to the succession, either expressly by declaration in a will or agreement, or implicitly by the terms of such disposition. The choice of law is limited to the law of the State whose nationality the testator possesses at the time of making the choice or at the time of death.
For testators whose death Is on or after the 17th of August 2015, a choice of law made prior to that date will only be valid if it meets the conditions of the Regulation, or if it is valid in accordance with the Private International Law rules which were in force at the time the choice was made.
Renvoi & Public Policy
In most circumstances, renvoi will no longer be relevant under the Regulation. However, where the applicable law determined by the Regulation is that of a third State, the application of such law is to include its Private International Law rules, insofar as those rules make a renvoi to the law of a Member State, or to the law of another Third State which would apply its own law.
The application of a provision of law of any State specified by the Regulation may be refused only if such application is manifestly incompatible with the public policy of the forum. The courts of Member States dealing with succession will be able to disregard, in exceptional circumstances, the application of foreign law due to public interest considerations.
The general principle is 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. There will be instances where the deceased’s habitual residence at the time of death is not located in a Member State. In such cases, the courts of the Member State in which assets of the estate are located shall have jurisdiction to rule on the succession as a whole. This is so if the deceased’s nationality at the time of death was of that Member State, or else if the deceased’s previous habitual residence was located in that Member State as long as a period of not more than 5 years has lapsed from the change in habitual residence.
When the testator makes an express or implied choice of law, and this law is that of a Member State, the parties may agree that the court of that Member State is to have exclusive jurisdiction. This agreements must be in writing, dated, and signed by the concerned parties.
Recognition of Decisions
A decision given in a Member State shall be recognized in the other Member States without any special procedure being required. The following constitute the grounds for non-recognition of decisions:
- If the decision is manifestly contrary to public policy in the Member State of recognition;
- If a decision is given in default of appearance;
- If it is irreconcilable with a decision that has been given in proceedings between the same parties in the Member State of recognition;
- If it is irreconcilable with an earlier decision given in another Member State or in a Third State in proceedings between the same parties and involving the same cause of action.
Decisions that are given in a Member State, and are enforceable in that State, shall be enforceable in another Member State on application of any interested party. This is the same with regard to 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 State of origin, provided that this is not manifestly contrary to the public policy of the Member State concerned.
The European Certificate of Succession (“ECS”)
The main purpose behind the ECS is for cross-border succession within the European Union to be settled in a smooth and efficient manner. The ECS is to be used by heirs, legatees, executors of wills, and administrators of an estate in order to demonstrate their status, or exercise their rights and powers in another Member State.
Prior to issuing a European Certificate of Succession, the issuing authority will need to verify the contents of the application and the supporting documentation, as well as carry out any necessary enquiries. The authority may decide to accept other evidence if the applicant is unable to provide the relevant documents that are required.
The certificate shall be issued in the Member State whose courts have jurisdiction (General Jurisdiction; Choice Of Law Jurisdiction; Subsidiary Jurisdiction; or Forum Necessitatis), by a court, or other authority, – which has competence to deal with matters of succession under national law.
Effects Of The ECS
The ECS will be recognized in all Member States, and will be presumed to accurately demonstrate all the established elements. The Certificate shall constitute a valid document for the recording of succession property in the relevant register of a Member State.
The suspension of the effects of the Certificate may be ordered by the issuing authority or the judicial authority, at the request of any person showing a legitimate interest, or entitled to challenge a decision, respectively.
Implementation Of The Regulation In Malta
Implementing the EU Succession Regulation has resulted in a number of amendments to the Maltese Civil Code. In particular, a list of the competent authorities for issuing a European Certificate of Succession has been added, empowering the Civil Court (Voluntary Jurisdiction) to act in all cases; and Notaries in cases where all the beneficiaries of the succession are in agreement on the contents of the ECS, and where they have expressed their consent in writing.
Notaries must refuse to issue a ECS if an application has been made to the Civil Court of Voluntary Jurisdiction, or where the agreement in writing of the beneficiaries has not been obtained, or where the notary is aware of a dispute concerning the inheritance. A decision of an issuing authority may be challenged by means of a sworn application before the 1st Hall of the Civil Court. Additionally, an appeal may be lodged before the Court of Appeal, within 20 days from the date of judgment of the Civil Court (1st Hall).