European Parliament Votes for Common Rules on Succession and Wills

On 16th November, MEPs voted overwhelmingly (450 to 51) in favour of a report by Mr Gargani of the Committee on Legal Affairs, asking the European Commission to draw up a

Community legal instrument relating to private international law on successions and wills, as already called for in the 1998 Vienna action plan, the programme of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters, adopted by the Council and Commission in 2000, the Hague Programme of 4 November 2004 for strengthening freedom, security and justice in the European Union, and the Council and Commission Action Plan implementing the Hague Programme on strengthening freedom, security and justice in the European Union (p.3-4).

The Report calls on the Commission to submit a legislative proposal to Parliament under Articles 65(b) and 67(5), second indent, of the EC Treaty during 2007, and to launch a call for proposals for an information campaign regarding cross-border wills and succession matters, targeted at legal practitioners in the field. The current problems in transnational testaments are described by the Rapporteur with an example:

Let us consider the hypothetical case of a German citizen who, on retirement, moves from Germany to the south of Spain (where he spends the last decade of his life) and dies there, leaving two sons residing in Germany and an estate comprising property in Germany. In a case of this kind, if the jurisdiction were determined solely on the basis of the deceased person’s habitual place of residence at the time of death, the heirs – supposing they were in dispute over the will – would be obliged to bring the proceedings in question before the Spanish courts.

The rules proposed in the Report are fairly wide-ranging; in terms of scope, "the legislative act to be adopted should aim to regulate succession exhaustively in private international law and at the same time: harmonise the rules concerning jurisdiction, the applicable law (the ‘conflict rules’) and the recognition and enforcement of judgments and public instruments issued abroad, except for the material substantive law and procedural law of the Member States (p.5). The proposed rule for determining a court's jurisdiction is the:

habitual place of residence of the deceased at the time of his death as the criterion for establishing both principal jurisdiction and the connecting factor.

The Report also suggests that the parties be allowed to choose their court (in accordance with Articles 23-24 Brussels I Regulation), and that the testator be able to choose which law should govern the succession, the law of the country of which he is a national or the law of the country of his habitual residence at the time the choice is made; this choice should be indicated in a statement taking the form of a testamentary clause.

The default choice of law rule proposed is that of the law of the country which was the habitual residence of the deceased at the time of his death; this would ensure, the Rapporteur argues, that the court with jurisdiction and the applicable law would coincide, which would help to ensure that any disputes concerning the succession were rapidly and effectively resolved. The Rapporteur does, however, admit a problem with reconciling any kind of succession law with the lex loci rei sitae: the law of the place where the property is situated, which generally governs the question of transfer of title. The Rapporteur simply recommends that those laws should be "coordinated." The suggested method is to ensure that:

the instrument to be adopted should make it clear that, for the purpose of acquiring and enjoying inherited property situated in a State other than that whose law applies to the succession, it is necessary to follow the rules of the law of the place where the property is situated only if that law requires further formalities or actions in addition to those required by the law applying to the succession.

Amongst all this, the EP stress that:

if European citizens could have access to a standardised document which had binding force in all the Member States and identified the law applicable to the succession, the property concerned and the heirs and executors, those heirs and executors could exercise their rights in all Member States even more simply, safely and effectively.

The EP therefore strongly recommend a "European Certificate of Inheritance", which should be issued by a public authority. The Report concludes by stating that,

This is obviously a complex and many-sided issue.

That, at least, is apparent. The full Report by the Committee on Legal Affairs is available here. Also see the discussion in the 37th report of the UK government Committee on European Scrutiny. Does the Rapporteur's Report pick the right conflict of laws rules, and were the MEPs right to vote so strongly in favour of the Report? Comments welcome.

Comments on this entry are closed.

  • Anne Palmer November 21, 2006, 2:56 pm

    I will read up on this in greater detail, however, my first thought was, “Whatever happened to the “joining the European Community for trade?”. Where is the Common Market we decided to remain in in 1975? You ask, were MEP’s right to vote so strongly in favour of the Report? My quick answer is “NO”, because the making of wills is a very personal matter, it is however also a legal matter and this is strictly a national issue.
    I will however give it greater thought when I have read exactly what these MEP’s have agreed to and looked also at which British MEP’s have said yes and which have said no.

  • Anne Palmer November 21, 2006, 10:59 pm

    Commission intrusion on Succession and Wills. 23.11.2006. Anne Palmer

    These are my observations on the European Parliament’s vote on adopting a Report on Succession and Wills by 457 votes in favour to 51 against with 22 abstentions.

    Not only does what is proposed in this Bill come at a most sensitive time for the bereaved, it also, as most ordinary people have come to learn the hard way, may cost a great deal more than it costs at present through our own long standing legislation, it will cost each and every one of us, whether at home or abroad, a great deal more money. Nothing that the European Union does is free or cheap.

    We in the United Kingdom of Great Britain are already used to different kinds of legislation, Scotland has always had its different kind of legislation (law) to England and Wales on certain matters. This is written very clearly in the Act of Union 1707. We are used to dealing with it. Northern Ireland is also somewhat different. We deal with it. Since “enforced Devolution, many things are different. Scotland and Wales have their own Parliaments, England does not have their own Parliament, yet.

    When some one in any family dies, it takes time to sort things out, it has to be done. Sometimes people have not even made a Will. That too has to be dealt with. Sometimes, the person may make a “death bed” will, nothing will be ‘officially recorded’ anywhere, not even in England, but it is usually dealt with to every one, or most people’s satisfaction.

    Especially at the time of great sadness in family matters-I emphasize that these mostly are private family matters, there is enough paperwork for the remaining member or members of family to deal with without the added burden of notifying an external European body.

    A great many people now go to live abroad in warmer countries especially upon retirement. However with the retirement age extended, people maybe too old to up sticks and retire ‘abroad’ as they have done and generally older people make wills in preparedness and to make things easier for their loved ones to sort out.

    Many people go to live in Canada or America on their retirement, some even as far away as Australia, yet over hundreds of years there has been absolutely no need for one organisation to intrude on what after-all is a national affair for its own nationals.

    Problems may well arise over property and belongings over divorce, but this too is a national affair once again, all laws are different and it is virtually impossible to harmonise these matters. These too are national and most certainly not for any further interference or bureaucracy by anyone outside of our Country, or organisation outside of it. I can do no better than to place here part of the UK comments from their Thirty-Seventh Report:
    “The UK Government agrees with the Commission that the diversity of the laws of succession in operation across Member States makes full harmonisation of these laws inconceivable. The Government considers that such harmonisation would be a fundamental interference in the domestic affairs of Member States, which could have unpredictable social and cultural outcomes. It would be undesirable and unnecessary.
    “It is the UK Government’s view that the diversity of legal traditions in Member States must be fully respected. This is essential because the differences in the approaches taken by Member States to the transfer of property on death are fundamental. Some Member States, such as the UK, favour freedom of testamentary disposition, whilst others provide for reserved heirship. Some allow property to pass direct to the heirs, but the UK and others operate a court based system, which, on the death of the deceased, gives ownership of the deceased’s property to a third party. This third party is entrusted with the administration of the estate of the deceased and its distribution to his or her beneficiaries. Some, including the UK, define the estate as the property of the deceased at the date of death, others include gifts made by the deceased during his or her life. This diversity is entirely legitimate. It reflects the differing approaches adopted by different societies within the European Union to questions about the nature of ownership and about family obligations. It limits the extent to which any harmonisation proposed in a European instrument could be acceptable. However, although the UK Government would, in principle, be able to support measures of limited harmonisation that would bring real benefits to citizens, it considers that there is very little scope for creating them in the field of succession”(I do not agree with that last bit at all)
    “The UK Government strongly believes that any European legislation on cross-border succession cases must not adversely affect the working of important aspects of the domestic succession laws of the UK. Therefore, any European instrument must not:
    · limit the operation of the principle of freedom of testamentary disposition or affect the operation of the rules of intestacy;
    · change the court based system of probate and the associated office of executor;
    · interfere with the use of trusts, joint tenancies or life policies; or
    · adversely affect the working of the national land registration or tax law systems.”
    This is giving in to the European Union, a point that anything the EU wants will eventually have to get. Not so if the citizens of this Country say “NO, enough is enough”. Death in families is enough to cope with, without interference or more EU legislation to think about from Government or the European Union.
    I personally see no point in “registering wills” in all member states, including the proposed central European Register, and our Government believes that any registration of wills should be voluntary and should not preclude informal and deathbed wills, both of which are regularly made in UK jurisdiction. Most certainly the cost of registering Wills on all Member States would be prohibitive and this would not help those that retire to America or Australia.
    Freedom of movement no longer matters to the person that is dead. Freedom to move around the EU is no longer important to them. Perhaps this maybe the first time they have been “free” since 1972.
    http://www.publications.parliament.uk/pa/cm200506/cmselect/cmeuleg/34-xxxvii/34×27.htm

  • Martin George November 21, 2006, 11:35 pm

    Anne,

    Many thanks for your observations. I have updated the original post with a link to the 37th report of the UK European Scrutiny Committee.

  • Anne Palmer November 22, 2006, 7:21 am

    There is obviously a great deal more to this subject. I have only just touched the surface. However, I do not like what I see.

  • Anne Palmer March 8, 2009, 8:29 am

    I will make my objection to this proposed legislation quite clear. This legislation would apply to all EU Citizens. As Her Majesty, Queen Elizabeth II (and Her heirs) has also been made a Citizen of the European Union-as shown on an Official UK Website, this legislation would obviously apply to the present and future holder of The British Crown and the Commonwealth of Nations etc.
    This Legislation would therefore intrude directly into or over the United Kingdom of Great Britain’s Common Law Constitution, made up of various long Standing Acts and Treaties such as, The Act of Settlement, The Act of Union, The Declaration and Bill of Right 1688/9 (to name but a few) which holds the Oaths we all so swear and which we are duty bound to protect and uphold, this applies to all our Lords, Ladies, and Members of Parliament, and of course would intrude on Magna Carta to which we have fought wars to uphold.

    If this proposed legislation becomes active, it would not just affect the United Kingdom and Northern Ireland but the rest of Her Majesty’s Commonwealth Countries and Overseas territories.

    If this be so, then it is about time the people in her Majesty’s Realm should be told the true meaning of the EU and the Treaty of Lisbon. Rather the courage to do that, than what will surely follow if that courage is found wanting.