Study carried out by the Max Planck Institute for Comparative and International Private Law, Hamburg: comments on the European Commission´s Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of successions and the creation of a European Certificate of Succession, COM(2009)154final ELRA Madrid 2010

Text of Article 36: Creation of a European Certificate of Succession 1.This Regulation introduces a European Certificate of Succession, which shall constitute proof of the capacity of heir or legatee and of the powers of the executors of wills or third-party administrators. This certificate shall be issued by the competent authority pursuant to this Chapter, in accordance with the law applicable to succession pursuant to Chapter III of this Regulation. 2.The use of the European Certificate of Succession shall not be obligatory. The certificate shall not be a substitute for internal procedures. However, the effects of the certificate shall also be recognised in the Member State whose authorities have issued it in accordance with this Chapter. ELRA Madrid 2010

Comments on Article 36 ELRA Madrid 2010 In practice: need for heirs to prove their position Certificate of succession as an advantage (context banks) Cross-border-cases in the European Union Most national certificates of succession are not recognised in other Member States Reference to the German Erbschein: Art German Civil Code, the heir who is displayed in the Erbschein, is presumed to be the true heir; bona fides effects like in the German Land Register Therefore, the idea of introducing a European Certificate of Successions having the same content(!) and the same effects, is highly welcomed; the European Certificate of Succession will be accepted without further formalites The European Certificate of Succession should serve as proof of the status of the heir in all Member States; in additon to that, it establishes a rebuttable presumption that the content of the Certificate is accurate However, the relationship between the European Certificate of Succession and national certificates are not mentioned in Article 36- it is only mentioned that the use of the European Certificate of Successsion shall not be obligatory, Art. 36 (2); as a result, the MPI (Max Planck Institute) suggests to approve the optional character of the European Certificate of Succession MPI also suggests certificates instead of procedures in Art. 36 (2) 2

Text of Article 37: Competence to issue the certificate ELRA Madrid The certificate shall be issued upon application by any person obliged to provide proof of the capacity of heir or legatee and of the powers of the executors of wills or third-party administrators. 2.The certificate shall be drawn up by the the competent court in the Member State whose courts are competent to Articles 4, 5 and 6.

Comments on Article 37 - Art. 37 (1) displays some inaccuracies regarding the definition of potential applicants for a European Certificate of Succession -To avert misinterpretation, the MPI applies for making it very clear that any heir, beneficiary, devisee legatee, executor or third-party is entitled to apply for a Certificate -furthermore, Art. 37 (1) seems to suggest that the applicant is under some obligation towards third parties to prove his succession right; in fact, this is not the purpose of the application procedure; the MPI suggests claiming to be an heir… instead of obliged to provide proof of the capacity; these persons are simply obliged to provide proof of their respective capacity before the competent court -In Art. 37 (2) it is mentioned that the certificate shall be drawn up; in fact, the certificate must be issued (!) by the competent court ELRA Madrid 2010

Text of Article 38 (only 1): Content of the application 1.Any person applying for the issue of a certificate of succession shall provide, via the form of a mode of which is provided in Annex I, where such information is in their possession: a) information concerning the deceased… b) the claimant´s details: surname, forename… c) the elements of fact or law which justify their right to succession… d) if they are replacing others heirs or legattes…. e) whether the deceased has stipulated a marriage contract… f) if they are aware that the succession rights are being contested… ELRA Madrid 2010

Comments on Article 38 -Art. 38 defines requirements of an application for a European Certificate of Succession; it determines the standard of proof for the accuracy of data -The applicant has to provide the competent court with all relevant facts -However, the terminology in Art. 38 (1) is quite unclear: claimant´s details, because Art. 38 refers to an application, not a claim -In the current version the applicant is allowed to attach just a simple copy of the testament; the MPI proposes that the applicant should attach the original of the disposition; in any other case, the applicant should be obliged to provide the competent court with all information regarding the whereabouts of the disposition ELRA Madrid 2010

Text of Article 39: Partial certificate 1.A partial certificate may be applied for and issued to attest to: a) the rights of each heir or legatee, and their share; b) the devolution of a specific item of property, where this is allowed under the law applicable to the succession; c) administration of the succession. ELRA Madrid 2010

Comments on Article 39 -Art. 39 gives the applicant the opportunity to limit the scope of a European Certificate of Succession to certain information such as: * the rights of each heir or legatee * devolution of a specific item of property, where this is allowed under the law applicable to the succession * administration of the succession. -The MPI proposes to clarify that the partial certificate has the same effects as a regular certificate; in the current situation, the status of the partial certificate is not clear; MPI suggests : The competent court shall issue a partial certificate having the same effects as the regular certificate (Article 42)… ELRA Madrid 2010

Text of Article 40 (only 1-3): Issue of the certificate 1.The certificate shall be issued only if the competent court considers that the facts which are presented as the grounds for the application are established. The competent court shall issue the certificate promptly. 2. The competent court shall carry out, of its own accord and on the basis of the applicant´s declarations and the instruments and other means of proof provided by them, the enquiries necessary to verify the facts and to search for any further proof that seems necessary. 3. For the purpose of this Chapter, the Member States shall grant access to the competent courts in other Member States, in particular to the civil status registers, to registers recording acts and facts relating to the succession or to the matrimonial regime of the family of the deceased and to the land registers. ELRA Madrid 2010

Comments on Article 40 -Art. 40 defines the requirements of the issue of the certificate -It stipulates the court´s obligation to conduct an official enquiry -In addition to that, it also stipulates that the competent court shall be given access to the registers of the Member States -Art. 40 (3) opens also the land registers for enquiries carried out by the competent court; as a result, the Land Register Law is also involved; from the German point of view, this special access would be in accordance with Art. 12 Grundbuchordnung, because it can be considered as a legitimate interest; the European Judicial Network must be asked for help and support? MPI was not aware of ELRA and the European Land Registry Network (ELRN); I think that this enquiries should be made by ELRA/ELRN, because as legal practitioners we know best how to make this researches! ELRA Madrid 2010

Text of Article 41 (1, 2): Content of the certificate 1.The European Certificate of Succession shall be issued using the standard form in Annex II. 2. The European Certificate of Succession shall contain the following information: a) the issuing court… b) information concerning the deceased… c) any marriage contracts… ….i) the list of assets or rights for legatees in accordance with the law applicable to the succession… ELRA Madrid 2010

Comments on Article 41 -MPI suggests to reduce the content of the certificate to the essential information to prove a person´s entitlement to a succession -As a result, the standard form in Annex II of the Regulation should be revised, too -According to the MPI study, the standardised form fails to serve this function when the Certificate contains additional and specific information (p. 131) -According to the MPI study, the current situation about the content of the Certificate will only result in confusion and raise questions regarding the scope and the effects of the Certificate -The Institute, therefore, recommends excluding any such information from the Certificate itself… (p. 132) -To secure clarity in legal relations, must have priority - especially Art. 41 (2) (i), the list of assets or rights for legatees in accordance with the law applicable to the succession, may be misunderstood as a partition certificate, which is in contrast to the property law in some Member States, where a transaction, recorded by a notary, is needed for the partition of the assets. According to the German property law, a legatee is only a right personam against the heir, not a right in rem (p. 134) MPI states: The proposed list of assets or rights in Art. 41 (2) (i) raises the same concerns as illustrated above and should therefore be deleted. (p. 134). ELRA Madrid 2010

Text Article 42, 43: The effects of the European Certificate of Succession Rectification, suspension or cancellation of the European Certificate of Succession -In Art. 42 (1) it is laid down, that the European Certificate of Succession shall be recognised automatically in all the Member States -The content of the certificate shall be presumed to be accurate until the contrary is proven (Art. 42(2)) -However, the relationship between the European Certificate of Succession and national certificates are not regulated; the same is true for the relationship of several European Certificates among each other. (MPI study p. 139). ELRA Madrid 2010

Exit: Annex II: European Certificate of succession referred to in Article 41 See ELRA Madrid 2010