The EU Succession Regulation1 is not just an EU thing as it
ambitiously attempts to resolve the conflict of laws in succession
matters. It will apply to deaths after 17 August 2015.
Due to the mobility of today's people, who can accumulate
assets in multiple countries, upon death the usual questions faced
when dealing with cross-border succession issues are:
(i) does a governing law clause only mean that place's
domestic laws or does it include its private international laws
which will, in all likelihood, pass the question to another
(ii) can the laws of different jurisdictions apply to
Therefore, the aim of the Succession Regulation is to resolve
the conflict of succession laws between the participating member
states (which in this case do not include the UK, Ireland and
Denmark) so that the courts of a single jurisdiction will apply a
single set of laws to a person's estate regardless of the
location of assets.
WHAT JURISDICTION AND APPLICABLE LAW WILL APPLY?
In general terms, the courts and governing law will be the place
of the deceased's "habitual residence" unless:
(i) there is a jurisdiction to which the deceased was more
closely connected; or
(ii) the deceased elected for the law of their nationality to
Therefore, if the law governing the succession falls within one
of the above (even if that is not an EU member state), assets of
the deceased located in a participating member state should pass
entirely in accordance with the law of that other jurisdiction and
regardless of the laws of the state within which the assets are
To accommodate this, interested parties in the estate will be
able to apply to the courts of the relevant jurisdiction for a
"European Certificate of Succession". This certificate
will contain details about the deceased, such as the relevant
succession law and the heirs, and will act as an equivalent to a
grant of probate or representation for each participating member
state; therefore doing away with post-death certificates in each
THAT SOUNDS GREAT, BUT...?
Habitual Residence: In typical EU fashion, the
Succession Regulation does not define "habitual
residence" so looking to other EU sources it is likely to be
regarded as: 'the place where the person had established, on a
fixed basis, his permanent or habitual centre of interests, with
all the relevant facts being taken into account for the purpose of
determining such residence'. Consequently, more often than not,
the meaning will be a complex question of fact.
Non-Participating Member States: It is
difficult to see how the non-participating member states, such as
the UK, can be forced to follow the requirements of the Succession
Regulation. Therefore, without all member states signing up to the
Succession Regulation, you have to suspect its application will
have limited success if an estate involves assets in a
non-participating state. For example, a French resident and
national can chose French law to apply to both his bank accounts in
Luxembourg and house in London. Whilst the bank accounts could fall
under French law for succession purposes, the UK is not bound by
the Succession Regulation and so it is difficult to see why the
English courts would recognise (i) the European Certificate of
Succession; and (ii) that French law applies to English realty. If
the situation was reversed, with an English resident national
owning a Parisian house, the English courts would look to apply the
law of its situs and apply French law.
Forced Heirship: It is entirely possible that,
in some cases, the Succession Regulation could result in
"forum shopping" by some testators having dual
nationality and wishing to avoid forced heirship provisions in
certain participating member states and which exist to avoid
disinheritance of family members.
APPLICABILITY TO ASSETS IN THE CHANNEL ISLANDS
Not being parties to the Succession Regulation, we anticipate
the position being the same as a non-participating member state.
Therefore, for those persons with assets in either Jersey or
Guernsey and who may chose the law of their habitual residence or
nationality to apply to those assets pursuant to the Succession
Regulation, be aware that neither Jersey or Guernsey are likely to
recognise its applicability or even perhaps the European
Certificate of Succession.
1 (Regulation (EU) No.650/2012)
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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