Dana Rone, Mag.iur.

14 May 2023 1

IntroductionCertificate of succession is a document

confirming status, rights and obligations of the heirs, legatees and executors of wills

So far - no Community instrument on succession or unified certificate of succession

The substantive law as well as rules of private international law, jurisdiction and applicable law, vary significantly from one Member State to another

14 May 2023 2

IntroductionEU Member States have different legal

traditionsPurpose of certificate of succession is

different and depends on legislation of particular Member State

Unification of administrative instrument - certificate of succession

14 May 2023 3

Background of the Draft RegulationGrowing mobility of people in an area without

internal frontiers and the increasing frequency of unions between nationals of different Member States, often entailing the acquisition of property in the territory of several Union countries, are a major source of complication in succession to estates

Explanatory Memorandum to the draft Regulation

14 May 2023 4

Background of the Draft RegulationIs it a mere coincidence that the European

Commission adopts this proposal a few days after the Irish referendum?

Commission was planning to present it in March

EU Member States have different legal traditions, which the Commission quite often neglects to respect, particularly the common law system

14 May 2023 5

Background of the Draft RegulationCommission proposed the application of a

single criterion, that of the deceased's habitual place of residence at the time of person’s death

United Kingdom courts have been applying the common law test of domicile at the time of death to determine the applicable law and jurisdiction.

No formal definition in the UK of “habitual residence” which would cause legal uncertainty for individuals

14 May 2023 6

Background of the Draft RegulationPerspective of those countries, where the

term “habitual residence” is used: the term “domicile” is the one who creates unclarities

Willingness of the EUMember States to agree on common solutions for easier and faster norms in the Succession Law

National pride

14 May 2023 7

Background of the Draft RegulationEC Treaty: measures concerning family law

with cross-border implications shall be adopted by the Council acting unanimously after consulting the European Parliament

Commission has stressed that the majority of EU Member States consider the law of succession as a matter distinct from family law

Proposal is subject to the co-decision procedure

14 May 2023 8

Background of the Draft RegulationDraft proposal is necessary for the proper

function of the internal market as it intends to eliminate the obstacles to the free movement of persons which arise from the EU Member States’ different rules governing international successions

1998 Vienna Action Plan1999 Hague Programme 

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Necessity for certificate of successionRecognition of authentic instruments in

succession mattersCreation of a European Certificate of

Succession enabling the capacity of an heir and the powers administrator or executor of a succession to be proven throughout the EU, without further documents or translations required

14 May 2023 10

Necessity for certificate of successionAll EU Member States should recognise

automatically the European Certificate of Succession as regard to the capacity of the heirs, legatees, and powers of the executors of wills or third-party administrators

Certificate enables immediate recognition of an heir’s entitlement to the deceased assets which are located in other Member States

Certificate would be issued by the competent authority which has jurisdiction to settle the succession

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Necessity for certificate of successionClause 4.6 of the Explanatory Memorandum,

Chapter VI: Regulation introduces a European certificate of succession in order to enable international successions to be settled rapidly

Individuals benefit from the introduction of the European Certificate of Succession

Automatic proof of heir’s right to an estate in any Member State of the EU

14 May 2023 12

Necessity for certificate of successionSsavings in costs both in terms of legal

advice and fees, where such fees were payable to prove heirship

To facilitate its circulation in the EU, a uniform model certificate should be adopted and an authority appointed which would have the international competence to issue it.

14 May 2023 13

Necessity for certificate of successionPrinciple of subsidiarity: proposed European

certificate of succession would not replace existing certificates in the Member States

In the Member State of the competent authority, the capacity of heir and the powers of an administrator or executor of the succession must therefore be proven according to domestic procedure

2 certificates of succession instead of current single document

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Necessity for certificate of successionCertificate - directly effective in all Member

StatesAdditional expenses for Member States Processes and systems in place to enable

such Certificates to be issuedAdministrative costs

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Critique of European draft certificate of successionReply of the Government of the UK to the

Commission’s Green paper: 1)European Certificate of Succession would not be

effective to entitle an heir possession of property in UK as it is required a grant of representation in favour of an executor so that he can administer and distribute the estate

2)Certificate has different functions in different systems which would be “confusing and cumbersome”.

3)Certificate allows for the transcription or entry of the inherited acquisition in the public registers of the Member State in which the property is located

14 May 2023 16

Critique of European draft certificate of successionCommission: the use of the European

Certificate of Succession would not be obligatory

The current proposal is not compatible with the common law system, in fact, it would have substantial impact on the UK’s legal traditions

The UK may opt out from the proposed Regulation

14 May 2023 17

ConclusionsEU initiative to regulate successionsUnification of certificate of successionGains for individualsReluctance of Member StatesProtection of national legislative traditions

and heritage

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