Dana Rone, Mag.iur. 14 March, 20161

Introduction Certificate of succession is a document confirming status, rights and obligations of the heirs, legatees and executors of wills So far - no Community instrument on succession or unified certificate of succession The substantive law as well as rules of private international law, jurisdiction and applicable law, vary significantly from one Member State to another 14 March, 20162

Introduction EU Member States have different legal traditions Purpose of certificate of succession is different and depends on legislation of particular Member State Unification of administrative instrument - certificate of succession 14 March, 20163

Background of the Draft Regulation Growing mobility of people in an area without internal frontiers and the increasing frequency of unions between nationals of different Member States, often entailing the acquisition of property in the territory of several Union countries, are a major source of complication in succession to estates Explanatory Memorandum to the draft Regulation 14 March, 20164

Background of the Draft Regulation Is it a mere coincidence that the European Commission adopts this proposal a few days after the Irish referendum? Commission was planning to present it in March EU Member States have different legal traditions, which the Commission quite often neglects to respect, particularly the common law system 14 March, 20165

Background of the Draft Regulation Commission proposed the application of a single criterion, that of the deceased's habitual place of residence at the time of person’s death United Kingdom courts have been applying the common law test of domicile at the time of death to determine the applicable law and jurisdiction. No formal definition in the UK of “habitual residence” which would cause legal uncertainty for individuals 14 March, 20166

Background of the Draft Regulation Perspective of those countries, where the term “habitual residence” is used: the term “domicile” is the one who creates unclarities Willingness of the EUMember States to agree on common solutions for easier and faster norms in the Succession Law National pride 14 March, 20167

Background of the Draft Regulation EC Treaty: measures concerning family law with cross- border implications shall be adopted by the Council acting unanimously after consulting the European Parliament Commission has stressed that the majority of EU Member States consider the law of succession as a matter distinct from family law Proposal is subject to the co-decision procedure 14 March, 20168

Background of the Draft Regulation Draft proposal is necessary for the proper function of the internal market as it intends to eliminate the obstacles to the free movement of persons which arise from the EU Member States’ different rules governing international successions 1998 Vienna Action Plan 1999 Hague Programme 14 March, 20169

Necessity for certificate of succession Recognition of authentic instruments in succession matters Creation of a European Certificate of Succession enabling the capacity of an heir and the powers administrator or executor of a succession to be proven throughout the EU, without further documents or translations required 14 March,

Necessity for certificate of succession All EU Member States should recognise automatically the European Certificate of Succession as regard to the capacity of the heirs, legatees, and powers of the executors of wills or third-party administrators Certificate enables immediate recognition of an heir’s entitlement to the deceased assets which are located in other Member States Certificate would be issued by the competent authority which has jurisdiction to settle the succession 14 March,

Necessity for certificate of succession Clause 4.6 of the Explanatory Memorandum, Chapter VI: Regulation introduces a European certificate of succession in order to enable international successions to be settled rapidly Individuals benefit from the introduction of the European Certificate of Succession Automatic proof of heir’s right to an estate in any Member State of the EU 14 March,

Necessity for certificate of succession Ssavings in costs both in terms of legal advice and fees, where such fees were payable to prove heirship To facilitate its circulation in the EU, a uniform model certificate should be adopted and an authority appointed which would have the international competence to issue it. 14 March,

Necessity for certificate of succession Principle of subsidiarity: proposed European certificate of succession would not replace existing certificates in the Member States In the Member State of the competent authority, the capacity of heir and the powers of an administrator or executor of the succession must therefore be proven according to domestic procedure 2 certificates of succession instead of current single document 14 March,

Necessity for certificate of succession Certificate - directly effective in all Member States Additional expenses for Member States Processes and systems in place to enable such Certificates to be issued Administrative costs 14 March,

Critique of European draft certificate of succession Reply of the Government of the UK to the Commission’s Green paper: 1) European Certificate of Succession would not be effective to entitle an heir possession of property in UK as it is required a grant of representation in favour of an executor so that he can administer and distribute the estate 2) Certificate has different functions in different systems which would be “confusing and cumbersome”. 3) Certificate allows for the transcription or entry of the inherited acquisition in the public registers of the Member State in which the property is located 14 March,

Critique of European draft certificate of succession Commission: the use of the European Certificate of Succession would not be obligatory The current proposal is not compatible with the common law system, in fact, it would have substantial impact on the UK’s legal traditions The UK may opt out from the proposed Regulation 14 March,

Conclusions EU initiative to regulate successions Unification of certificate of succession Gains for individuals Reluctance of Member States Protection of national legislative traditions and heritage 14 March,