Select Committee on European Scrutiny Fifteenth Report


2 Succession and wills

(26423)

7027/05

COM(05) 65

Commission Green Paper on succession and wills

Legal base
Document originated1 March 2005
Deposited in Parliament14 March 2005
DepartmentConstitutional Affairs
Basis of considerationEM of 29 March 2005
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested

Background

2.1 The Brussels European Council of November 2004 invited the Commission to submit a Green Paper on the conflict of laws in matters of succession. The scope of the paper was to include jurisdiction, mutual recognition and enforcement, a "European certificate of inheritance" and the registration of wills.

2.2 At present, there are major differences between Member States' laws on succession, notably on succession on intestacy and on the degree to which a will may be set aside to make provision for dependants.[2] Member States' laws are largely unaffected by Community provisions. For example, Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil matters[3] excludes wills and succession from its scope, and the 1980 Rome Convention on the law applicable to contractual obligations does not apply to contractual obligations relating to wills and succession.

The Commission Green Paper

2.3 The Commission Green Paper takes the form of a discussion document with a series of questions raised for comment by consultees. The Commission refers to the growing mobility of persons between Member States and the increasing frequency of relationships between nationals of different Member States, often entailing the acquisition of property in several Member States, as a "major source of complication in succession to estates". In the Commission's view, the difficulties arise from differences in rules of substantive law, procedure and rules on the conflict of laws.

2.4 The Green Paper acknowledges that "full harmonisation of the rules of substantive law in the Member States is inconceivable" and devotes its attention instead to the rules on conflict of laws. The Green Paper raises a number of preliminary issues, such as the scope of any rules on conflict of laws and whether they should apply to a range of issues such as the validity of wills, the status of heirs, the existence of any reserved portion, and the administration and distribution of the estate. The Green Paper also raises the question of the connecting factor, i.e. the factor which links an estate with a particular system of law. The Commission points out that nationality (i.e. of the testator or person dying intestate) has for a long time enjoyed a privileged status, but is being replaced by habitual residence, and concludes that none of the connecting factors such as nationality, habitual residence or domicile is without its drawbacks. Using domicile as a connecting factor could have the effect of activating a system of law with which the succession is only tenuously connected, as in the case where the deceased does not have the nationality of the country where he dies, but owns property in another country. In such cases, the Green Paper raises the question of whether any single connecting factor should be insisted upon, or whether there should be a degree of flexibility.

2.5 By contrast, the Green Paper asserts that the universal nature of the rules "should not be in dispute" and that "confining the application of the harmonised conflict rules to strictly 'intra-Community' international situations and excluding those in which there is a third-country element would make life more difficult for individuals and the legal professions".

2.6 The Green Paper then poses a series of questions on which law should apply to testamentary capacity, the form and substance of the will, joint wills and the revocation of a will, how to address any change in connecting factor between the date of the will and the date of the testator's death and how to deal with succession where there have been simultaneous deaths.[4] The Green Paper seeks views on whether there should be a degree of flexibility to allow the testator to choose the law applying to the succession, whether the principle that a proportion of the estate should be reserved for near relatives should still apply where a system of law has been chosen which does not recognise such a reserved proportion, and whether conflict rules should be devised for trusts.

2.7 The Green Paper discusses the question of which court should have jurisdiction over the estate and over the transfer of immovable property, and whether there should be rules of recognition and enforcement of judgments and other formal acts relating to the estate. The Green Paper also discusses the question of a possible European certificate of inheritance to allow heirs to assert their rights in other jurisdictions and on whether there is a need for a centralised register of wills.

The Government's view

2.8 In her Explanatory Memorandum of 29 March 2005, the Parliamentary Under-Secretary of State at the Department for Constitutional Affairs (Baroness Ashton of Upholland) explains that the Government supports proposals to improve the administration of estates where there are links with more than one jurisdiction. She states that the Government agrees with the Commission that "full harmonisation of succession laws throughout the European Union is inconceivable" and that the Government would not allow harmonisation to impinge on important aspects of domestic succession laws, such as the principle of freedom of testamentary disposition, the rules on intestate distribution and the ability to use trusts to deal with property on succession.

2.9 On the question of the universal scope of any future rules, the Minister comments that "given the UK's continuing strong relationship with the Commonwealth and the USA, the Government will need to give careful consideration to the impact of any proposals arising from the Green Paper on dealing with non-EU countries".

2.10 The Minister notes that national registries of wills and a central European Union registry "might bring some benefits to legal practitioners and beneficiaries" but that any such registry of wills should be voluntary. The Minister adds that the Government is still considering the issues raised in the Green Paper and intends to submit a response by the deadline of 30 September 2005 and will supply us with a copy of the response.

Conclusion

2.11 Like the Minister, we welcome the recognition by the Commission that full harmonisation of the laws on succession in the European Union is "inconceivable". We also welcome the fact that the Green Paper appears genuinely to seek views on a number of difficult and complex issues without pre-judging those issues.

2.12 Given the substantial personal links which many in the United Kingdom have with Commonwealth countries and other English-speaking non-EU countries such as the United States, we believe the Minister is right to be concerned about the possibly universal nature of any rules adopted under the EC Treaty.

2.13 We note the Minister's undertaking to send us a copy of the Government's reply to the Green Paper, but we would find it helpful if the Minister were to show us the Government's reply in draft so that we might have an opportunity to comment, or at least to inform us in good time of the main lines of the Government's reply.

2.14 We shall hold the document under scrutiny pending the Minister's reply.


2   As in England and Wales under the Inheritance (Provision for Family and Dependants) Act 1975. Back

3   OJ No. L 12 of 16.01.2001, p.1. Back

4   As under the commorientes rule in England and Wales, or the "common calamity" rule in Scotland, whereby the elder spouse is deemed to have died first. Back


 
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