CBA Latest News (11 Jan 2016)

Date: Jan 2016

On August 17th, 2015 the Regulation (EU) No 650/2012 of the European Parliament and the Council of the European Union on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European certificate of succession has become entirely applicable to all member states of the European Union pursuant to its article 84, exception made for Denmark, United Kingdom and Ireland. The succession to the estates of any person deceased at such date or thereafter shall thus be governed by the provisions under such regulatory instrument, apart from certain exceptions (article 83).

As similarly happened with other private international law regulations having a European source, the Regulation No 650/2012 contextually rules, a) jurisdiction b) applicable law c) recognition and enforcement o decisions, authentic instruments and court settlements, in connection with successions mortis causa, which is a field so far remained untouched by the European Legislator.

Without pretending to draw an exhaustive picture, we hereby wish to provide some preliminary information upon the Regulation at stake.

1. Scope

The regulation applies to “all the successions mortis causa” (article 1 par.1). With this regard recital no. 9 details that it concerns all civil-law aspects of succession to the estate of a deceased person, namely all forms of transfer of assets, rights and obligations by reason of death, whether by way of a voluntary transfer under a disposition of property upon death or a transfer through intestate succession.

Besides revenue, customs and administrative matters, the regulation does not apply to (article 1 par.2): a) the status of natural persons, as well as family relationships and relationships deemed by the law applicable to such relationships to have comparable effects; b) the legal capacity of natural persons, without prejudice to point (c) of article 23(2) and to article 26; c) questions relating to the disappearance, absence or presumed death of a natural person; d) questions relating to matrimonial property regimes and property regimes of relationships deemed by the law applicable to such relationships to have comparable effects to marriage; e) maintenance obligations other than those arising by reason of death; f) the formal validity of dispositions of property upon death made orally; g) property rights, interests and assets created or transferred otherwise than by succession, for instance by way of gifts, joint ownership with a right of survivorship, pension plans, insurance contracts and arrangements of a similar nature, without prejudice to point (i) of article 23(2); h) questions governed by the law of companies and other bodies, corporate or unincorporated, such as clauses in the memoranda of association and articles of association of companies and other bodies, corporate or unincorporated, which determine what will happen to the shares upon the death of the members; i) the dissolution, extinction and merger of companies and other bodies, corporate or unincorporated; j) the creation, administration and dissolution of trusts; k) the nature of rights in rem; and l) any recording in a register of rights in immovable or movable property, including the legal requirements for such recording, and the effects of recording or failing to record such rights in a register.

2. Jurisdiction

Pursuant to article 4 the courts of the member state in which the deceased has his “habitual residence” at the time of death have jurisdiction to rule on the succession as a whole.

The regulation states that “in order to determine the habitual residence, the authority dealing with the succession should make an overall assessment of the circumstances of the life of the deceased during the years preceding his death and at the time of his death, taking account of all relevant factual elements, in particular the duration and regularity of the deceased’s presence in the State concerned and the conditions and reasons for that presence. The habitual residence thus determined should reveal a close and stable connection with the State concerned taking into account the specific aims of this Regulation” (recital no. 23).

Moreover the parties concerned (not the deceased) may agree by a dedicated written deed that a court or the courts of a member state are to have exclusive jurisdiction to rule on any succession matter, provided that the law chosen by the deceased in order to govern his succession is the law of such state (article 5).

Pursuant to article 7 the courts of a member state whose law has been chosen by the deceased shall have jurisdiction if:

a) a court previously seised has declined jurisdiction in the same case pursuant to article 64; b) the parties to the proceedings have agreed, in accordance with article 5, to confer jurisdiction on a court or the courts of that Member State; or c) the parties to the proceedings have expressly accepted the jurisdiction of the court seized.

The following article 10 par. 1 clarifies that where the habitual residence of the deceased at the time of death is not located in a member state, the courts of a member state in which assets of the estate are located shall nevertheless have jurisdiction to rule on the succession as a whole in so far as:

  • the deceased had the nationality of that member state at the time of death; or, failing that,
  • the deceased had his previous habitual residence in that member state, provided that, at the time the court is seised, a period of not more than five years has elapsed since that habitual residence changed.

Where no court has jurisdiction pursuant to paragraph 1, the courts of the member state in which assets of the estate are located shall nevertheless have jurisdiction to rule on those assets (par. 2).

Where, exceptionally, no court of a Member State has jurisdiction pursuant to other provisions of this Regulation, the courts of a Member State may, on an exceptional basis, rule on the succession if proceedings cannot reasonably be brought or conducted or would be impossible in a third state with which the case is closely connected provided however that the case has a sufficient connection with such member state (so called forum necessitatis; article 11).

Application may be made to the courts of a member state for such provisional and protective measures as may be available under the law of that state (article 19)

The coordination between actions eventually pending in the courts of different member states is guaranteed by dedicated provisions on lis pendens (article 17) and related actions (article 18).

3. Applicable Law

In principle the law applicable to the succession as a whole is the law of the state in which the deceased had its habitual residence at the time of death (article 21 par. 1).

The reference to the “habitual residence” also with regard to the applicable law aims at guaranteeing, as far as possible, the coincidence between forum and ius, given that - as already outlined - the same connection criterion is also used to identify the competent court.

Moreover where, by way of exception, it is clear from all the circumstances of the case that, at the time of death, the deceased was manifestly more closely connected with a state other than the state whose law would be applicable under paragraph 1, the law applicable to the succession shall be the law of that other State (par. 2).

Article 22 allows, on the other hand, that a person may expressly choose as the law to govern his succession as a whole the law of the state whose nationality he possesses at the time of making the choice or at the time of death.

A person possessing multiple nationalities may choose the law of any of the States whose nationality he possesses.

Pursuant to following article 23, the applicable law shall govern the succession as a whole and in particular:

a) the causes, time and place of the opening of the succession; b) the determination of the beneficiaries, of their respective shares and of the obligations which may be imposed on them by the deceased, and the determination of other succession rights, including the succession rights of the surviving spouse or partner; c) the capacity to inherit; d) disinheritance and disqualification by conduct; e) the transfer to the heirs and, as the case may be, to the legatees of the assets, rights and obligations forming part of the estate, including the conditions and effects of the acceptance or waiver of the succession or of a legacy; f) the powers of the heirs, the executors of the wills and other administrators of the estate, in particular as regards the sale of property and the payment of creditors, without prejudice to the powers referred to in article 29(2) and (3); g) liability for the debts under the succession; h) the disposable part of the estate, the reserved shares and other restrictions on the disposal of property upon death as well as claims which persons close to the deceased may have against the estate or the heirs; i) any obligation to restore or account for gifts, advancements or legacies when determining the shares of the different beneficiaries; and j) the sharing-out of the estate.

Specific provisions finally allow to identify the law applicable to agreements as to succession; and dispositions of property upon death other than the same (respectively, in particular, articles 25 and 24). It is important to stress with this respect that the application of such provisions along with those concerning the recognition and enforcement that will be addressed compel, as a matter of fact, member states, such as Italy (article 450 of the Italian Civil Code), that do not admit agreements as to succession, to recognize them provided they are valid according to the applicable law.

Pursuant to article 34 par. 1, in case of application of the law of any third State (the regulation is effective erga omnes) the rules of private international law of such state shall also be taken into consideration (so called renvoi) in so far as those rules make a renvoi:

a) to the law of a member state; or b) to the law of another third state which would apply its own law.

In some cases no renvoi shall apply (article 34 par. 2).

The application of a provision of the law of any State specified by this Regulation may be refused only if such application is manifestly incompatible with the public policy (ordre public) of the forum of the court or any other authority dealing with the succession (article 35).

It shall be noted by the way that the so called principle of “unity of the succession” set forth by the same law - upon which the Regulation No 650/2012 is grounded - excludes the possibility to apply the national provisions regarding the reserved share if the applicable law is not the one of the state foreseeing such reserved share.

4. Recognition and enforcement of decisions, authentic instruments and court settlements

A decision given in a Member State pursuant to the Regulation are recognised in the other member states without any special procedure being required (article 39 par. 1). The court of a member state may thus have to decide upon the recognisability of a foreign judgement only in the case of a relevant challenge, in which case the procedure under articles 45 to 58 (par. 2) shall be followed.

With this respect, pursuant to article 40, decisions rendered in another member state may not be recognised in following cases:

a) if such recognition is manifestly contrary to public policy (ordre public) in the Member State in which recognition is sought; b) where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the decision when it was possible for him to do so; c) if it is irreconcilable with a decision given in proceedings between the same parties in the Member State in which recognition is sought; d) if it is irreconcilable with an earlier decision given in another Member State or in a third State in proceedings involving the same cause of action and between the same parties, provided that the earlier decision fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.

A review as to the substance is excluded (article 41).

Furthermore, in case of appeal against the decision, which is subject matter of recognition in the member state that rendered it, the court may stay the proceedings (article 42).

Decisions given in a member state and enforceable in that state shall be enforceable in another member state when, on the application of any interested party, they have been declared enforceable there in accordance with the mentioned procedure provided for in articles 45 to 58 (article 43).

The local jurisdiction regarding recognition and enforcement lies with the court or authority of the place of domicile of the party against whom enforcement is sought or of the place of enforcement (article 45).

The Regulation No 650/2012 finally foresees the recognition and enforcement of authentic instruments and court settlements concerning succession too (articles 59-61). With this regard attention is especially drawn on the fact that authentic instruments established in a member state shall have the same evidentiary effects in another member state as they have in the member state of origin or the most comparable effects, safe made for the limit of the public policy (article 59 par.1).

The mechanisms of recognition and enforcement provided under the Regulation No 650/2012 do not concern court decisions, authentic instruments and court settlements coming from a third state, with respect to which articles 64 ff. of law No 218 of 31 May 1995 (bearing the reform of the Italian private international law) continue to be applied.

5. European certificate of succession

The Regulation creates no 650/2012 creates a “European certificate of succession” which use shall not be mandatory and is in addition to possible national certificates, on which it however prevails (article 62).

The certificate is for use by heirs, legatees having direct rights in the succession and executors of wills or administrators of the estate who need to invoke their status or to exercise respectively their rights as heirs or legatees and/or their powers as executors of wills or administrators of the estate (article 63 par. 1). Italy declared the notaries as the competent entity for the release such certificate (article 32 of law no 161 dated 30 October 2014, so called “legge europea 2013-bis”).

According to par. 2 of article 63 the certificate may be used, in particular, to demonstrate one or more of the following:

a) the status and/or the rights of each heir or, as the case may be, each legatee mentioned in the Certificate and their respective shares of the estate; b) the attribution of a specific asset or specific assets forming part of the estate to the heir(s) or, as the case may be, the legatee(s) mentioned in the Certificate; c) the powers of the person mentioned in the Certificate to execute the will or administer the estate.

The Regulation also details the content of the certificate (article 68) and its effects (article 69), specifying with this latter regard that “the certificate shall produce its effects in all member states, without any special procedure being required” (par. 1).

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