The EU Succession Regulation (Brussels IV) and Conflicts of Law Anna Steward.

Transcription

1 The EU Succession Regulation (Brussels IV) and Conflicts of Law Anna Steward

2 Background Regulation (EU) 650/2012 (otherwise known as Brussels IV) Entered into force in August 2012 Implemented on 17 August 2015 Binding in all EU member states except for UK, Ireland and Denmark. Structure 7 Chapters: Chapter I (Scope and Definitions); Chapter II (Jurisdiction); Chapter III (Applicable Law). 2

3 Overview EU Succession regulation key provisions Choices of law/elections effectiveness and validity Practical considerations: Jurisdiction/situs of assets Governing law Matrimonial property regimes Lifetime gifts and clawback How many wills? Will trusts and recognition

4 Objectives (Recitals 7 and 8 of Brussels IV) Remove obstacles to the free movement of persons who currently face difficulties in asserting their rights in the context of a succession having cross-border implications. Enable EU citizens to organise succession matters in advance. Guarantee the rights of heirs and legatees, of other persons close to the deceased and of creditors of the succession. 4

5 General Principles Scope and Jurisdiction Scope (Chapter I) Applies to succession to the estates of deceased persons (Article 1). Various Exclusions apply (Article 2). Jurisdiction (Chapter II) The courts of the Member State in which the deceased had his habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole (Article 4). Where the law chosen by the deceased to govern his succession pursuant to Article 22 is the law of a Member State, the parties concerned may agree that a court or the courts of that Member State is/are to have exclusive jurisdiction to rule on any succession matter (Article 5). 5

6 General Principles (2) Applicable Law (Chapter III) Any law specified by Brussels IV applies whether or not it is the law of a Member State (Article 20). Unless otherwise provided for in Brussels IV, the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death (Article 21(1)). Exception: where it is clear from all the circumstances of the case that, at the time of the death, the deceased was manifestly more closely connected with another state (Article 21(2)); the law of this state applies. 6

7 General Principles (3) Applicable law continued A person may choose to apply the law of any nationality he possesses at the time of making the choice or at the time of death (Article 22(1)). Renvoi (Article 34): 1. The application of the law of any third State specified by Brussels IV shall mean the application of the rules of law in force in that State, including its rules of private international law in so far as those rules make a renvoi: (a) to the law of a Member State; or (b) to the law of another third State which would apply its own law. 2. No renvoi shall apply with respect to the laws referred to in Article 21(2), Article 22, Article 27, point (b) of Article 28 and Article 30. 7

8 In Practice A UK national is habitually resident in France and owns immovable property in France and in England. Current rules French law will apply to the French property and English law to the English property Brussels IV: England will still apply English law to English property, UK national can elect under article 22. Beware the terms of the English Will consider election in French will (recognition of trusts etc). 8

9 Practical Issues 1. Meaning of habitual residence, domicile etc. Common Law (Domicile) v Civil Law (Residence) 2. Application of Renvoi. 3. Matrimonial Regimes. 4. Lifetime Gifts and Trusts. 5. Will Brussels IV apply to wills made before 16 August 2012? 6. UK: Member State or third party? 9

10 Case Study Family of four (parents and two children all UK residents). M, a French national, is domiciled in France (from a UK perspective). F, a UK national, domicile (of origin) in England. M owns a house in France, F and M are joint owners of a property in Tuscany and a chalet in Switzerland. They have an account in Switzerland in joint names and F s sole name. M has a bank account in France in her sole name. M & F would like their worldwide property to pass to the surviving spouse on the first death There are concerns with their children eventually inheriting significant sums 10

11 Case Study 1. French assets Current applicable laws Domicile vs domicile (false friends) Impact of Brussels IV 11

12 Case study contd. 2. Swiss assets Applicable laws Elections? Chalet vs accounts 12

13 Case study contd 3. Italian assets Current applicable laws Election now or later? Conflict and renvoi Impact of Brussels IV

14 Case study contd 4. English assets How many wills? Trusts? Foreign claims if elections validly made under foreign law Impact of Brussels IV?

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