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The UK and the European Succession Regulation: Fog over the Channel – Potential Pitfalls for the Unwary?

Document Cited authorities 1 Cited in Related
Vincent
Pages86-93
Date01 January 2018
Author
Published date01 January 2018
DOI10.3366/elr.2018.0456
INTRODUCTION

The European Succession Regulation (“the Regulation”)1 is made under the “area of freedom, security and justice” pillar of the European Union.2 European Union (“EU”) legislation under this pillar is not “single market” law. The United Kingdom (“UK”) and the Republic of Ireland had to choose whether or not to opt in to it. Neither country chose to opt in to this particular Regulation. Consequently it does not apply to either of them: for the purposes of its interpretation and application, they are both “third countries”, as if they were not EU states.3 The main reason why the UK did not opt in was to avoid having to enforce other states' court orders requiring restitution of lifetime gifts diminishing the estate falling into heirship.4 There are fundamental differences between the structures of the succession laws and private international laws of the British/Irish Archipelago on the one hand and Continental Europe on the other.5 In the past, private international law relative to immovable6 property facilitated peaceful co-existence between the UK systems, under which the executor is eadem persona cum defuncta, effectively operating under a mandate from the deceased, and those Continental systems where death operates to vest in the heirs a right in rem. The Regulation has given rise to a true conflict of laws. That is why, although the UK did not opt in to the Regulation, it needs to be taken into account when drawing up wills and managing executries in this country. It applies to all deaths on or after 17 August 20157 even, potentially,8 where the will was made before 16 August 2012, the date when the Regulation became law.9

This note seeks to set out some of the practical difficulties. In particular, the apparent flexibility of the Regulation is a potential trap for UK nationals or residents and their lawyers.10 The scope of this note is limited to successions where a valid will exists and excludes any consideration of laws relating to rights in matrimonial or patrimonial property.11 There is no discussion of taxation issues. It should, however, be noted that domicile can affect the incidence of inheritance or equivalent taxes in not only the UK but other states.12

 IDENTIFYING THE APPLICABLE SUCCESSION LAW UNDER THE REGULATION

The Regulation provides a complete code of private international law to be applied not only between those EU states to which it extends but also between those states and third countries (such as, in this respect, the UK) to which it does not. It sets out the rules for conflicts between substantive national succession laws as well as conflicts between the private international laws relative to national succession laws. The rules allocating jurisdiction and recognising judgments relative to succession apply only to courts in states where the Regulation is law. This matters because, in identifying the law applicable to a succession, the Regulation does not discriminate between the succession laws of such states and the succession laws of third countries.13 It treats the succession law of a third country as the applicable law even if the private international law of that third country would not. According to the Regulation, only one succession law should apply to the succession to the entire estate, movable or immovable, wherever situated (known as “unity of succession”).14 It need not be the law of a state where the Regulation is law.15 A reference to the law of a state “which comprises several territorial units each of which has its own rules of law in respect of succession” is to the succession law which that state's own internal conflict of laws would select,16 failing which to the succession law of the “territorial unit” with which the deceased had the closest connection, for example: Scotland, England and Wales, or Northern Ireland, or one of the states of the United States of America, or a territorial unit of Spain. The Regulation does not purport to enable a choice among the laws of the “territorial units” of the state of nationality of the deceased.17

 SCOPE OF THE SUCCESSION LAW IDENTIFIED BY THE REGULATION AS THE APPLICABLE LAW

Once the applicable law has been determined, all matters relating to capacity, influence and formality concerning a will are referred to it.18 The detailed coverage of the applicable law is set out in Article 23(2) of the Regulation. It is to cover in particular:

the...

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