The European Union's proposed regulation relating to succession with a cross border dimension : perspectives of private international law and Maltese succession law

Abstract

As European Union citizens make greater use of their right to freedom of movement within the European Union, succession cases with a cross-border dimension are on the increase. In these cases, several difficulties are known to be caused by the disparate national rules as well as Private International Law rules on succession in the different Member States with the result that these divergent rules obstruct the free movement of persons in the European Union. In order to counter this situation, the European Commission issued the proposed Regulation on Jurisdiction, Applicable Law, Recognition and Enforcement of Decisions and Authentic Instruments in Matters of Succession and the Creation of a European Certificate of Succession which is meant to serve as "a comprehensive instrument covering all issues relating to matters of succession in cross-border situations, with the exception of revenue, customs and administrative matters. It will lay down rules of jurisdiction and of conflict of laws and will set out the procedure to be followed for the recognition and enforceability of decisions, authentic instruments and court settlements. In addition it will provide for the creation of a European Certificate of Succession intended to facilitate the settlement of cross-border succession cases." Following criticism by Member States of the European Union of some of the provisions in the Proposed Regulation on Succession, the Working Party on Civil Law Matters (Succession) decided to draw up a revised consolidated version of the Regulation. This thesis includes a comparison of various provisions in the Proposed Regulation on Succession and changes suggested in the Working Document. The first chapter of this thesis examines the background to the Proposed Regulation on Succession by mentioning the grounds for, and objectives of, this proposal and the wide-ranging consultation exercise that took place within Member States before this Proposal was drawn up. The second chapter in this thesis includes comments on the articles found in the Proposed Regulation on Succession relating to jurisdiction. Insofar as the issue of jurisdiction in matters of succession, there are positive conflicts where the courts In several member states declare that they are competent to decide on the case at hand as well as negative conflicts where no court declares itself to be competent. A uniform rule is established in the Proposed Regulation on Succession whereby the court of the Member State where the deceased had his last habitual residence will have jurisdiction to rule on a cross-border succession case. In the third chapter, an analysis is made of the applicable law to govern a cross-border succession case with particular emphasis on the connecting factor of the law of the last habitual residence of the deceased and the choice of law given to the testator to choose the law governing his nationality when drawing up his will. This advocates the principle of the freedom of movement within the European Union where the testator is keen to preserve close links with his country of origin by means of his succession. When reference is made to the Proposed Regulation on Succession, it is pertinent to mention the practical importance of "authentic instruments". An evaluation of the definition of "'authentic instruments" given by the European Court of Justice in the Unibank decision and the way the Proposed Regulation ensures their recognition are also given due coverage in this thesis. Mention is also made in this thesis of the European Certificate of Succession found in the Proposed Regulation which enables the capacity of an heir and the powers of the administrator or executor of a succession to be proven throughout the European Union without the need of any further documents or translations. By way of conclusion, this thesis discusses the Maltese authorities' views on the Proposed Regulation on Succession and the likely effects that this Regulation will have on Maltese law in succession matters.