2 Succession and wills
| (26423)
7027/05
COM(05) 65
| Commission Green Paper on succession and wills
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| Legal base | — |
| Document originated | 1 March 2005
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| Deposited in Parliament | 14 March 2005
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| Department | Constitutional Affairs
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| Basis of consideration | EM of 29 March 2005
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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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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