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Succession and wills (Green Paper)
With this Green Paper, the Commission is launching a public consultation exercise in order to address the practical problems encountered by individuals in connection with succession and wills. The difficulties facing those involved in a transnational succession mostly flow from divergences in the substantive rules, the procedural rules and the conflict rules applicable in the Member States. The mobility of individuals within the European Union (EU) and the increasing number of marriages between nationals of the different Member States also influence matters relating to succession and wills.
Green Paper: Succession and wills [COM(2005) 65 final - Not published in the Official Journal].
The Commission is not planning full harmonisation of the rules of national law governing succession and wills in the Member States, but addresses in the Green Paper the applicable law, the connecting factors and the jurisdiction of courts with a view to drawing up a possible Community instrument. The Green Paper sets out solutions for facilitating the administrative aspects of succession by way of a European certificate of inheritance and the registration of wills.
RESOLVING CONFLICTS OF LAW WITHIN THE EUROPEAN UNION
Under Member States' national law, the same matters are not necessarily governed by the law of succession. Harmonisation of the conflict rules should come with a definition of what is covered by the law of succession. One or more connecting factors will then have to be determined.
The Commission is consulting the public on the questions that are governed by the law applicable to succession and, in particular, whether the conflict rules should be confined to the determination of heirs and their rights or also cover the administration and distribution of the estate. It examines the connecting factor to be used in determining the applicable law: should the same factor apply to the whole range of issues covered by the applicable law or might different criteria apply to different aspects of the succession? Should the Community conflict rule distinguish between movable and immovable property?
Wills and agreements as to future successions (simultaneous death)
The national laws of the Member States on wills and agreements as to future successions take a wide range of approaches to testamentary capacity, the forms of wills, validity in substantive terms, etc. The conflict rules also differ widely. In this Green Paper the Commission addresses the issue of the law applicable to general testamentary capacity and the validity of the will.
The order in which two people who are likely to inherit each other's property die can have an impact on their respective heirs' rights. Where people die in the same incident, the law in the Member States differs: some of them presume that they died at the same time whereas others presume that they died in a particular order. How, therefore, should the possible incompatibility of the laws applicable in the matter be settled in order to avoid the impossibility of administering a succession?
Choice of law applicable to the succession
Most Member States do not allow the future deceased or his/her heirs to choose the law applicable to his/her succession. The Commission would like to see a degree of flexibility as to the connecting factor in a succession.
The Commission wonders, among other things, whether the future deceased should be allowed to choose the law applicable to his/her succession, with or without the agreement of his/her presumptive heirs or whether the possibilities of choosing the law applicable should be limited and the procedure for making the choice determined.
Tackling other issues relating to the succession
The Commission is also launching a debate on the reserved portion of an estate, trusts created by a testator and the issue of renvoi where the conflict rules designate the law of a third country. In addition, the law applicable to the succession sometimes makes the administration of the succession dependent on a preliminary question: validity of a marriage, establishment of paternity, etc. What conflict rule should be adopted to determine these matters?
RULES ON JURISDICTION
The Member States have adopted widely varying criteria for determining which court is to have jurisdiction in the event of a dispute concerning a succession: some of them take the last domicile of the deceased, the domicile of the defendant or claimant, the situation of the property, etc. The Commission addresses the possibility of choosing a head of jurisdiction, the procedures for the transfer of immovable property, the jurisdiction of non-judicial authorities, and trusts.
Choice of a head of jurisdiction. The Commission considers the possibility of determining a single court that would have jurisdiction, regardless of the distinction between movable and immovable property. It wonders whether the general nature of this criterion of a single forum is desirable and whether heirs should be allowed to proceed in a court other than the one designated.
The criteria defined in the future instrument might designate a court in a third country. The Commission takes the view that it will not necessarily be desirable to waive unilaterally the jurisdiction of the courts in the Member States if other connecting factors, excluded at Community level, might be relevant for unilaterally demarcating the jurisdiction of these courts in relation to those of third countries. Leaving it for the national legislation of the Member States by way of "residual jurisdiction" to answer this question would mean that a common solution could not be found and other conflicts of jurisdiction could emerge. The Commission wonders, therefore, what elements would be relevant in determining the jurisdiction of the courts of the Member States in relation to third countries, including for immovable property located in the territory of a third country.
Procedures for the transfer of immovable property. The transfer of immovable property requires entries in different registers. The registration formalities vary between Member States: some of them require that registration be made only on the basis of a judgment given or a document issued by a national authority. The Commission considers that register entries might be amended on the basis of documents issued in another Member State.
Jurisdiction of non-judicial authorities. The Commission might consider allowing heirs to handle certain formalities with authorities near to them (notaries or officers of all manner of administrative authorities) if they do not reside at the place designated by the principal rule of jurisdiction.
Trusts. Succession is excluded from the scope of Regulation (EC) No 44/2001 and there are no Community rules of jurisdiction for litigation in relation to trusts created in wills. What rules of jurisdiction should be contained in the future Community instrument as regards such trusts?
Rules of recognition and enforcement. The Commission would like to simplify matters for heirs by allowing the recognition and enforcement of documents needed for the recognition of their rights. This includes, on the one hand, recognition and enforcement of judgments, deeds and wills and, on the other, possible automatic recognition in all Member States.
FACILITATING THE ADMINISTRATIVE ASPECTS OF SUCCESSION
In addition to facilitating the rules on recognition and enforcement referred to, the Commission would like to introduce a European certificate of inheritance so as to facilitate evidence of status as heir without the need to go through further formalities. It is also considering allowing wills to be registered in all Member States so as to facilitate the search for wills, which is often a difficult task if they have been drawn up in another country.
The Commission addresses the issue of abolishing formalities for the legislation or endorsement (apostille) of succession-related public documents issued in a Member State.