Perspectives of a European Law of Succession
| Date | 01 June 2007 |
| Published date | 01 June 2007 |
| DOI | 10.1177/1023263X0701400203 |
| Author | Paul Terner |
| Subject Matter | Article |
14 MJ 2 (2007) 147
PERSPECTIVES OF A EUROPEAN
LAW OF SUCCESSION
P T *
ABSTRACT
e article analyses the l atest developments in the process of harmonisation in the area of
succession law in Europe. e status quo of harmonisation is described and the plan s to
harmonise this area in the future – which have not been given much conside ration in the
jurisprudential literature so far – are examined in detail. Particular attention is drawn
to the Green Paper ‘Succession and Will s’ which the European Commission has issued
recently (COM(2005) 65 nal). e preparatory works, the development and the content
of the Green Paper are described, an d the reactions to it, as well as it s possible outcomes,
are analysed.
Keywords: European law of succession; Green Paper ‘Succession and Wil ls’; Private
international law; Bruss els Convention
§1. I N TRODUCT ION
A. THE LAW OF SUCCESSION IN THE HA RMONISATION PROCESS
Only a few years ago, the title of this art icle might have caused disapproval or at lea st
astonishment. A Europea n law of succession seemed unthinkable; the law of succe ssion
itself was thought to be too deeply embedded in the funda mental concepts of justice,
morals and societ y of the di erent nations and to be one of the most indigenous branches
of the law.1 Despite the e orts to harmonise di erent areas of the law, particularly
company law and contract law, the law of succession has not played any role in t he
* Paul Terner is a lawyer (Notara ssessor) working i n Germany.
1 U. Spell enberg et al., ‘Recent developments in succe ssion law’, in R. Blanpa in (ed.), Law in motion,
(Kluwer, 1997), 713; W. Pintens, ‘Grundgedanken und Perspektiven einer Europäisierung des Fam ilien-
und Erbrechts – Teil 1’, 50 Zeitschri für das gesamte Fami lienrecht (FamRZ) 329 (2003), 331. See also,
as early as in 1996, E. von Caemmerer, ‘Rechtsvereinheitlichung und internationals Privatrecht’, in
Paul Terner
148 14 MJ 2 (2007)
process of harmonising Europe an private law on the way to a European civil code s o far.
In 2000, Professor Mi ller stated that the uni c ation of the di erent laws ‘is a di cult task
and no signi cant p rogre ss has been m ade in the eld of succession’.2 Even Professor von
Bar, who is known for his pro-European att itude, wrote in 1999 that, ‘[i]n any event, the
law of succession is not yet ready for harmonisation’,3 and, sim ilarly, in the 1st edition of
the leading book on the ha rmonisation of European private law, it was stated that the law
of succession was ‘the leas t ready for harmonisation e orts’.4
Against this bac kground, it seems quite surprising t hat only four years later the exact
same book included a whole chapter entitled ‘Harmonization of the Law of Succession
in Europe’,5 and that in 2005, the Eu ropean Commission issued a Green Paper on
successions and wil ls, therein referring to a ‘clear need for the adoption of harmonised
Europe an rules ’ in this area.6 It was only in Ja nuary 2007 that the Europea n ministers of
justice decla red in Dresden, Germany, that t here is need for further ac tion in the area of
family and succ ession law on the European level.7 Is this recent development the result of
a radical increas e in the importance of the international a spects of the law of succession
in recent years, or does it merely represent a shi in perception, i.e. that long-existing
problems and their implications have only now been recognised? In fact, it seems to be
both.
e rapidly growing interest in the har monisation of the law of succession is based
on the increased importance of its international elements and the rea lisation that the
law of succession cannot, in fac t, exist in tota l national isolation.8 e more Europe
grows together and the more people move with in Europe, the more international aspec ts
Von Caemmerer et al. (eds .), Festschri für Walter Hal lstein zum seinem 6 5. Geburtstag, (Fra nkfurt a m
Main, 1966), 66 .
2 G. Miller, International Aspects of Succession , (Ashgate, 2000), 40.
3 C. von Bar, ‘ e Study Group on a Europea n Civil Code’, (1999) European Pa rliament, Dire ctorate
General for Rese arch (ed.), Working Paper, Legal A airs Series, JUR I 103 EN, Chapter III, 136.
4 E. Hondius, ‘Towards a Europe an Civil Code . General Intro duction’, in A. Hartk amp et al. (eds .),
Towards a European Civil Cod e, ( e Hague, 1994, 1st e d.), 4. See a lso W. P inte ns, ‘ Grun dged ank en und
Perspektiven ei ner Europäisierung de s Familien- und Erbrecht – Teil 3’, 50 Zeitschri für das gesamte
Familienrecht (FamR Z) 499 (2003), 504. Nevertheless, t here have also been some positive s tatements
concerning t he feasibility of the h armonisation of succes sion law. In particula r D. Leipold (in: ‘Europa
und das Erbrecht’, in G . Köbler et al. (ed s.), Europas universale rechtspolitische Ordnungsaufgabe im
Recht des drit ten Jahrtause nds: Festschr i für Alfred Söllne r zum 70. Geburtstag , (München, 2000), 647)
has shown, wit h reference to the uni cation of the di erent laws in Germa ny at the beginning of t he
20th centu ry, that on the Europea n level, not only does a un i ed internat ional private law seem fea sible,
but also even a un i ed substant ive succession law is ‘di cult, but in no way impos sible’ (ibid. at 659,
translation by P. Terner).
5 See A. Verbeke and Y.-H. Leleu, ‘Harmoni zation of the Law of Succession in E urope’, in A. Hartka mp
et al. (eds.), Towards a European Civil Code, (K luwer, 1998, 2nd ed.), 173 et seq.
6 COM(2005) 65 nal, 3.
7 See the press release of t he German mini stry of justice f rom 15th January 2007 (availa ble at http://www.
bmj.de).
8 M. J. De Waal, ‘Comparative Succ ession Law’, in M. Reimann a nd R. Zimmermann (eds .), e Ox ford
Handbook of Comparative Law, (OUP, 2006), 1097.
Perspectives of a Eu ropean Law of Succession
14 MJ 2 (2007) 149
are involved in cases of succession. According to a study drawn up by the Ger man
Notary Institute on beha lf of the Eu ropean Comm ission,9 cross-border estates wit hin
the European Union are of great importance: not only do the populat ions of some EU
Member States include either a high number or a high percentage of citizens of other
Member States (e.g. 1.8 million citiz ens of other Member States live in Germa ny, and
in Luxembourg, 20% of t he population are citizens of ot her Member States), but also a
sizeable number of the citizens of some Member States live in other Member States (e.g.
over a million Itali ans, or 11.7% of the Irish). Furt hermore, many EU citizens have bank
accounts or own immovable property in other Member States: German ba nks estimate
that about 1 million Germans own immovable propert y in other Member States.10
On the basis of these gures, it has been assumed that between 50,000 and 100,000
transnational succe ssions are opened every year in the European Union,11 an estimate
that will cer tainly have to be raised following the recent accession of ten new Member
States.
B. TH E SCOPE AND PURPOSE OF THIS ARTICLE
is article is grounded on the fact that most of t he rules of law governing cases of
intranational successions are not uni ed or harmonised. is lack of uniformity or at
least harmonisat ion of the law leads to great d i culties for testators as well as heirs a nd
courts: testators may fear that t heir will mig ht not be executed a er their death i n the
way that they wish bec ause the law which they expected to apply, at the ti me the will was
dra ed wi ll not apply a er their deat h, because for example they changed their habitua l
residence a er dra ing the will and their new cou ntry of residence has a di erent law of
succession. For heirs it can be bot h di cult and expensive to evince t heir heirship, take
possession of an estate in a foreign countr y and/or enforce foreign judgments concerning
the estate. Last but not least , it can be very di cult for the cour ts to determine whether
they have jurisdict ion, which law to apply and the relevant foreign law. In Re. Duke of
Wel lin gt on , where Wynn-Parry J. had to consider t he succession to immovable property
in Spain, he describ ed the di culties as follows:12
‘ e task of an Englis h judge, who is faced with t he duty of nding as a fact w hat is the relevant
foreign law, in a case involv ing the applicat ion of foreign law, as it would be expou nded
in the foreign cou rt, for that pur pose notionally sit ting in that c ourt, is frequent ly a hard
one; but it would be di cult to imagine a harder tas k than that whic h faces me, namely, of
9 Deutsches Notarinstitut, ‘Les Successions Internationals dans l’UE – Perspectives pour une
Harmonisat ion, Étude de Droit Comparé sur le s Règles de Con its de jur isdiction et de Con its de
Lois relatives au x Testaments et Succession dans les E tats Membres de l’Union Européen ne’ (available
at http://www.dnoti.de/eu_ studie/eu_studie.htm).
10 Ibid., 187.
11 Ibid., 189.
12 [1947] Ch. 506, 515. See also In re Askew ([1930] 2 Ch. 259).
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