APPLICABLE LAW IN SUCCESSION MATTERS

according to Chapter III of the Regulation Nr.

650/2012/EU (the conflict-of-law rules)

Bucharest, September 20, 2013

Dr. Tibor Szöcs senior legal adviser

Hungarian National Chamber of Civil Law Notaries

THE SUCCESSION REGULATION AMONG THE COMMUNITY INSTRUMENTS

(in the field of judicial cooperation in civil matters )

JURISDICTION

RECOGNITION AND ENFORCEMENT

OF JUDGMENTS

CONFLICT OF LAWS

civil and commercial matters:

Brussels Convention 1968

Brussels I (44/2001(EC)

Brussels Ia (1215/2012/EU)

marriage and parental responsibility matters:

Brussels II (1347/2000/EC)

Brussels IIa (2201/2003/EC)

contractual obligations:

Rome Convention 1980

Rome I (593/2008/EC)

non-contractual obligations:

Rome II (864/2007/EC)

divorce matters:

Rome III (1259/2010/EU)

several matters: (regulating both procedure questions (jurisdictions, recognition & enforcement) and conflict of laws)

Insolvency proceedings regulation (1346/2000/EC)

Maintenance obligations regulation (4/2009/EU)

Succession regulation (650/2012/EU)

Marriage property regimes regulation (draft)

„Brussels-type“ regulations „Rome-type“ regulations

Complex regulations

THE CIVIL LAW NOTARIES IN EUROPE (Recitals (20)-(22) of the Regulation)

civil law notaries in the EU

(majority of the MS; e.g. FR, IT, BE, LU)

covered by the legal term “courts” according to Art. 3 (2)

(few MS, e.g. AT, SK, CZ, HU)

jurisdiction rules (Chapter II)

not bound by the jurisdiction system of the Regulation

bound by the jurisdiction system of the Regulation

conflict-of-laws rules (chapter III)

mandatory for all legal practitioners dealing with succession matters

(for both types of the civil notaries)

rules concerning free circulation of “acts” in succession matters

according to the rules about mutual acceptance of authentic instruments

(Chapter V)

according to the rules about mutual recognition and enforcement of decisions

(Chapter IV) and court settlements (Art. 61)

civil law notaries which DO NOT

exercise judicial functions

civil law notaries exercising judicial functions

in (non-contentious) succession proceedings

UNIVERSAL APPLICATION

Any law specified by this Regulation shall be applied whether or not it is the law of a Member State. (Art. 20) Determination of the applicable law: by the Regulation only

Hungary:

Act 1979/13 on Private International Law;

(Nemzetközi magánjogi tvr.) § 36

650/2012/EU Chapter III

Romania:

PIL Code / Lege Nr. 105 din 22 septembrie 1992

(drept internaţional privat) Art. 66-68

Bulgaria:

PIL Code / Кодекс на Международното Частно

Право

(17 Май 2005г.) Чл. 89-92

Greece:

Civil Code / Aστικοσ Kωδικασ (AK)

άρθρο 28

Italy:

PIL Code / Legge 218/1995 (riforma del sistema

italiano di diritto internazionale privato) Art. 46-49

Romanian-Hungarian Treaty of October 8, 1958 on mutual legal

assistance in civil, family and criminal matters

Art. 36 applicable law on movable and immovable succession assets

Art. 37 bona vacantia (assets without heirs)

Art. 38 applicable law on wills

650/2012/EU Chapter III “...this Regulation shall, as between Member States, take precedence over conventions concluded exclusively between two or more [Member States] ..... in so far as such conventions concern matters governed by this Regulation.” (Regulation Art. 75 (2))

Bulgarian-Hungarian Treaty of May 16, 1966 on mutual legal

assistance in civil, family and criminal matters

Art. 31 applicable law on movable and immovable succession assets

Art. 32 bona vacantia (assets without heirs)

Art. 33 applicable law on wills

Greek-Hungarian Treaty of October 8, 1979 on mutual legal

assistance in civil and criminal matters

Art. 23 applicable law on formal validity of wills

CONFLICT-OF-LAW RULES IN INTERNATIONAL TREATIES (IN SUCCESSION MATTERS)

a) Treaties, conventions between Member States e.g.:

USSR-Hungarian Treaty of July 15, 1958 on mutual legal assistance in civil, family and criminal matters (applicable with Russia) Art. 37 applicable law on movable and immovable succession assets Art. 38 bona vacantia (assets without heirs) Art. 39 applicable law on wills

conflict-of-law rules remaining in force “This Regulation shall not affect the application of international conventions to which one or more Member States are party...” (Regulation Art. 75 (1))

b) Treaties, conventions with third countries e.g:

Determination of applicable law in succession matters

single (uniform) system (“Nachlasseinheit”)

the same connecting factor for all succession assets

for the whole property of the deceased

(movables and immovables)

for all aspects of the succession

scission system (“Nachlaßspaltung”)

different connecting factors for - movables and

- immovables

exceptions, e.g: - partial renvoi (partial reference back to the law of a MS)

- special connecting factors for certain question (formal validity, substantial

validity of wills, etc.)

CORRESPONDENCE OF APPLICABLE LAW AND FORUM

last habitual residence of

the deceased

applicable law (Art. 21 (1)

The court /judicial authority having

jurisdiction usually can apply the succession

law of his own MS

jurisdiction (Art. 4)

exceptions, e.g:

forum applicable law

a) last habitual residence

of the deceased in a third

country

subsidiary jurisdiction of a MS

(e.g. MS of the citizenship of the

deceased) - Art. 10

law of the last habitual residence (third

country) Art. 21 (1)

b) choice of law general jurisdiction

(MS of the last habitual residence of the

deceased) - Art. 4

chosen law (law of the country of the

citizenship of the deceased) – Art. 22

c) escape clause general jurisdiction

(MS of the last habitual residence of the

deceased) - Art. 4

law of another country which the deceased

had “manifestly more closer connection”

with – Art. 21 (2)

d) special question general jurisdiction

(MS of the last habitual residence of the

deceased) - Art. 4

according to the special connecting factors

(e.g. formal and substantial validity of

wills; formal validity of declarations;

mandatory rules of the location of certain

assets, etc.)

SYSTEM OF THE CONFLICT-OF LAWS RULES OF THE REGULATION

Chapter III universal application (Art. 20)

general rule (Art 21 (1))

escape clause (Art 21 (2))

choice of law (Art. 22)

scope of the conflict-of-law rules according to Art. 21-22 (Art. 23)

dispositions of property upon death: - admissibility/substantive validity of

wills (Art. 24) - admissibility/substantive validity of agreements as to succession (Art. 25)

- scope of Art. 25-25 (Art. 26) - formal validity of written dispositions

of property upon death (Art. 27)

formal validity of certain declarations of the heir/legatee (Art. 28)

appointment /powers of an

administrator of the estate (Art. 29)

mandatory rules of the law of the location of certain assets (Art. 30)

Estate without a claimant (Art. 33.)

Commorientes (Art. 32)

renvoi (Art. 34)

ordre public (Art. 35)

adaptation of certain (in rem) rights (Art. 31)

states with more than one legal system: - interlocal conflict-of-laws (Art. 36) - interpersonal conflict-of-laws (Art.

37)

Non-application of this Regulation to internal conflicts of laws (Art. 38)

conflict-of-law rules for the “succession as a whole”

(lex successionis, Erbstatut)

special conflict-of-law rules for

certain questions

general PIL rules

GENERAL RULE (LEX SUCCESSIONIS) – for the “succession as a whole” connecting factor: habitual residence of the deceased at the time of death No legal definition.

Guidelines for the examination of the habitual residence: 1) case-law of ECJ ? to other community instruments, (e.g. Brussels IIA) C-497/10 („Mercredi / Chaffe”); C-523/07 („A”) Other “legal environment” Cannot be directly and “automatically” transposed in the context of this Regulation !

2) recitals of the Regulation

recital (23) – general approach to the concept of “habitual residence” “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….” Habitual residence: “close and stable connection” with the State concerned

recital (24) – specific cases a) “…where the deceased for professional or economic reasons had gone to live abroad to work there, sometimes for a long time, but had maintained a close and stable connection with his State of origin. In such a case, the deceased could, …. be considered still to have his habitual residence in his State of origin in which the centre of interests of his family and his social life was located.” b) “…where the deceased lived in several States alternately or travelled from one State to another without settling permanently in any of them. If the deceased was a national of one of those States or had all his main assets in one of those States, his nationality or the location of those assets could be a special factor in the overall assessment of all the factual circumstances.”

GENERAL RULE (LEX SUCCESSIONIS) – for the “succession as a whole” connecting factor: habitual residence of the deceased at the time of death

(Art. 21 (1))

exceptions

escape clause (Art. 21 (2))

(≈Rome I Art. 4 (3); Rome II Art. 4 (3), Art. 5 (3))

choice of law (Art. 22)

“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.” recital (25) “…where, for instance, the deceased had moved to the State of his habitual residence fairly recently before his death and all the circumstances of the case indicate that he was manifestly more closely connected with another State…” no effect on the jurisdiction! (no transfer of the case to the State of the “manifestly more closer connection”)

SCOPE OF THE APPLICABLE LAW (LEX SUCCESSIONIS)

“the succession as a whole” – all questions of the successions

(a) the causes, time and place of the opening of the succession; (b) the determination of the beneficiaries, of their shares, of the obligations (imposed on them by the deceased), and the determination of other succession rights, including the succession rights of the surviving spouse/partner; (c) the capacity to inherit; (d) disinheritance/ disqualification by conduct; (e) the transfer of the assets to the heirs/ legatees ; conditions and effects of the acceptance or waiver of the succession/ legacy; (f) the powers of the heirs/executors of the wills/administrators of the estate, in (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; as claims of persons close to the deceased against the estate/the heirs; (i) any obligation to restore or account for gifts/advancements/legacies when determining the shares of the different beneficiaries; (j) the sharing-out of the estate.

a) questions covered by special conflict-of law rules of the Regulation: (admissibility/substantive validity, formal validity of wills and of agreements as to succession; formal validity of certain declarations of the heir/legatee, appointment /powers of an administrator of the estate; etc.) b) validity of oral wills (excluded from the scope of the Regulation according to Art. 1 (2) f))

+ covered by the scope

in particular (not a full list!) —

not covered by the scope

RENVOI example 1 reference „back” to the law of a MS (Regulation, Art. 34 (1) a)) deceased: GR citizen; US last habitual residence immovable property in Vienna (AT)

EU

GR jurisdiction: Regulation, Art. 10 (subsidiary jurisdiction based on the citizenship) applicable law: Regulation Art. 21. (last habitual residence)

reference to the US law

US US conflict-of-laws rules in succession matters: - movables: domicile (lex domicilii) - immovables: location (lex rei sitae)

reference „back” (to the law of a MS) AT

Austrian substantive succession law (ABGB)

RENVOI Example 2 reference to the law of another third State which „accepts” this reference (Regulation, Art. 34 (1) b)) deceased: LEB citizen; last habitual residence: Serbia (RS) previous habitual residence (within 5 years): DE

EU

DE jurisdiction: Regulation, Art. 10 (1) b) (subsidiary jurisdiction based on the previous habitual residence within 5 years) applicable law: Regulation Art. 21. (last habitual residence)

reference to the RS law

RS RS conflict-of-laws rules in succession matters (Serbian PIL Act 1982, Art. 30): national law of the deceased (lex patriae)

(further) reference to the law of another third State which would apply its own law.

LEB

LEB conflict-of-laws rules in succession – national law of the deceased (lex patriae) (Lebanese law accepts the reference.)