New Study on the Evidentiary Effects of Authentic Instruments & Succession
The evidentiary effects of authentic acts in the Member States of the European Union, in the context of successions
This study was conducted in 25 EU Member States, under the coordination of the Centre for Private International Law at the University Aberdeen. It additionally includes input from the notariats of the CNUE. It sets out the typical domestic types of authentic instruments (and their usual evidentiary effects) arising in successions in the 22 Member States of origin (that allow their creation) and also deals with the ways in which they may interact with Art 59 of Regulation 650/2012 in each of the 25 Member States considered as Member States addressed. The authors looked at the meaning of ‘acceptance’ and the meaning of public policy in the context of Art 59 650/2012. They made various suggestions for improvements in best practice and for various legislative reforms of the Succession Regulation.
The abstract reads:
The EU Succession Regulation (Regulation 650/2012) allows for cross-border circulation of authentic instruments in a matter of succession. Authentic instruments are documents created by authorised authorities which benefit from certain evidential advantages. As this Regulation does not harmonise Member State substantive laws or procedures concerning succession the laws relating to the domestic evidentiary effects of succession authentic instruments remain diverse. Article 59 of the Succession Regulation requires the Member States party to the Regulation to give succession authentic instruments the evidentiary effects they would enjoy in their Member State of origin. The only limits on this obligation being public policy or the irreconcilability of the authentic instrument with a court decision, court settlement or another authentic instrument. This study, which was commissioned by the Policy Department for Citizen’s Rights and Constitutional Affairs of the European Parliament upon request of the Committee on Legal Affairs, provides an information resource for legal practitioners concerning the evidentiary effects of succession authentic instruments in the 25 Member States bound by the Succession Regulation. It also makes recommendations for best practice.
Full study available here (in English, but it is being translated into French and German).
The major problem with authentic instruments under the succession regulation is their distinction from decisions. In a number of cases doubts arise, weather a national instrument meets the requirements of a decision (art 1 sec. 1 lit. g succession regulation) or is, which is the alternative, an authentic instrument (as defined in art. 1 sec. 1 lit. i succession regulation). The difference is huge, as the possibility to refuse the acceptance (recognition) of the particular instrument in other member states is incomparable.
The German national report mentions such doubts in case of succession certificates issued by German courts. They also exist in Germany in cases of certificates for executors of wills. The Polish national report covers succession certificates, which are being issued by courts, as authentic instruments, though they are beyond any doubts decisions. Under Polish succession procedure courts issue binding declaratory decisions (rechtskräftige Feststellungsbeschlüsse) on the succession. I see no possibility not to qualify them as decisions under the regulation. Doubts in Poland may concern similar succession certificates issued by Polish notaries (akt po?wiadczenia dziedziczenia). They meet all requirements set by the regulation for decisions and have under Polish law the same legal effects a final declaratory decision of a court has. On the other hand, the Polish government did not notify notaries issuing such certificates as courts under art. 79 succession regulation (for internal reasons I guess).
In my view the qualification as a decision vs. authentic instrument falls within the competences of the issuing authority. All doubts in individual cases have to be solved in issuing member states (in court proceeding, if needed). In other member states the form qualifying the instrument as one of the two is binging.