Select Committee on European Scrutiny Thirty-Seventh Report

25 Succession and wills



COM(05) 65

Commission Green Paper on succession and wills

Legal base
DepartmentConstitutional Affairs
Basis of considerationMinister's letter of 4 September 2006
Previous Committee ReportHC 38-xv (2004-05), para 2 (6 April 2005)
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionCleared


25.1 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.

25.2 The previous Committee considered the Commission Green Paper on 6 April 2005. It welcomed the view expressed by the Commission that "full harmonisation" of the rules of substantive law in the Member States was "inconceivable" and noted the emphasis of the Green Paper on rules on the conflict of laws. In this regard, the Committee noted that the Green Paper raised a number of preliminary issues, such as the scope of any such rules (e.g. whether these should apply to the validity of wills, the status of heirs, the existence of any reserved portion, and the administration and distribution of the estate) and the question of the connecting factor (i.e. the factor which links an estate with a particular system of law).

25.3 The Committee also noted a number of substantive questions posed in the Green Paper on such matters as the law which should apply to testamentary capacity and the form and substance of wills, whether the testator should be allowed to choose the system of 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. Other questions noted by the Committee were those relating to jurisdiction over the estate and the transfer of immovable property, the recognition and enforcement of judgments and other formal acts relating to the estate and a possible European certificate of inheritance to allow heirs to assert their rights in other jurisdictions and the need for a centralised register of wills.

25.4 The previous Committee believed that, 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, the Minister was right to be concerned about the possibly universal[68] nature of any rules adopted under the EC Treaty. The Committee also noted the Minister's view 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 previous Committee held the document under scrutiny pending further information from the Minister on the Government's reply to the Green Paper.

The Minister's letter

25.5 In her letter of 4 September 2006 the Parliamentary Under-Secretary of State at the Department for Constitutional Affairs (Baroness Ashton of Upholland) supplies us with a copy of the Government's response to the Green Paper, which has been agreed with the Scottish Executive and submitted to the Commission.

25.6 The Government's reply notes that there are differences between the laws of England and Wales and Northern Ireland on the one hand and those of Scotland on the other, and that the Government is accordingly familiar with the practical issues arising from succession and wills involving these jurisdictions. The Government refers to the wide- ranging nature of the Green Paper and the difficult and controversial issues which it raises, and makes the following general statement:

"The UK Government agrees with the Commission that the diversity of the laws of succession in operation across Member States makes full harmonisation of these laws inconceivable. The Government considers that such harmonisation would be a fundamental interference in the domestic affairs of Member States, which could have unpredictable social and cultural outcomes. It would be undesirable and unnecessary.

"It is the UK Government's view that the diversity of legal traditions in Member States must be fully respected. This is essential because the differences in the approaches taken by Member States to the transfer of property on death are fundamental. Some Member States, such as the UK, favour freedom of testamentary disposition, whilst others provide for reserved heirship. Some allow property to pass direct to the heirs, but the UK and others operate a court based system, which, on the death of the deceased, gives ownership of the deceased's property to a third party. This third party is entrusted with the administration of the estate of the deceased and its distribution to his or her beneficiaries. Some, including the UK, define the estate as the property of the deceased at the date of death, others include gifts made by the deceased during his or her life. This diversity is entirely legitimate. It reflects the differing approaches adopted by different societies within the European Union to questions about the nature of ownership and about family obligations. It limits the extent to which any harmonisation proposed in a European instrument could be acceptable. However, although the UK Government would, in principle, be able to support measures of limited harmonisation that would bring real benefits to citizens, it considers that there is very little scope for creating them in the field of succession.

"The UK Government strongly believes that any European legislation on cross-border succession cases must not adversely affect the working of important aspects of the domestic succession laws of the UK. Therefore, any European instrument must not:

  • limit the operation of the principle of freedom of testamentary disposition or affect the operation of the rules of intestacy;
  • change the court based system of probate and the associated office of executor;
  • interfere with the use of trusts, joint tenancies or life policies; or
  • adversely affect the working of the national land registration or tax law systems."

25.7 The Government's reply also notes that differences between Member States are not limited to matters of substantive succession law, but that there are also fundamental differences between rules of private international law in relation to succession. It notes three matters of particular interest to the UK, namely, the principle that the law of the country where the immovable property is situated is also the law applicable to the succession to the immovable property, the distinction between matters of succession (determining who gets what) and matters of the administration and distribution of the estate (determining what is the net estate and the procedures and formalities for collecting in and then distributing the net estate to those entitled under the law of the succession) and the basic principle that the law of succession applies only to property comprised in the deceased's estate at death, with property effectively given away by the deceased in his or her lifetime not being part of the estate. The Government warns that any proposal to change these rules would require "strong justification" and that it is not aware that any such justification exists.

25.8 Subject to these significant concerns, the Government indicates that it supports, in principle, the concept of attempting to develop proposals to improve the administration of the estates of deceased persons with a cross-border element, in so far as the diversity of laws and practice creates real problems in the field of succession. Such proposals should be based on the mutual recognition and enforcement of judgments, judicial co-operation and the harmonisation of conflict of laws rules and should be restricted to cases with a cross-border element and be demonstrably necessary for the proper functioning of the internal market.

25.9 The Government adds that it is strongly of the view that the first stage in the development of any proposals should be a thorough analysis of problems with current law and practice and that any proposals for action at European level must be justified by clear evidence that the measures proposed offer proportionate solutions to real problems, which could not adequately be addressed at national level. The Government notes that the Green Paper does not contain any such evidence and observes that the assertion that European action is essential because there appear to be around 50,000 transnational succession cases each year among Member States is not an adequate evidence base to justify legislation. Accordingly, the Government does not accept the Commission's view that there is an established need for reform.

25.10 The Government's reply then deals with the specific questions asked in the Green Paper. As for the assertion in the Green Paper that the universal nature of future rules "should not be in dispute", the Government considers this to be premature and points to the practical importance of the United Kingdom's strong relationships with the Commonwealth and the USA which will cause the Government to give careful consideration to the impact of any proposals arising from the Green Paper on dealings with non-EU countries.

25.11 On the question of the proper scope of the law applicable to the succession, the reply states that the applicable law should not extend to matters of the administration and distribution of the estate, or to the definition of the property comprised in the estate, so as to prevent disruption of well functioning national administrative systems, such as the probate and land registries, and interference with the operation of national property law by incompatible rules of another Member State as to reserved heirship or freedom of testamentary disposition. The Government considers it would be "totally unacceptable" if the law applicable to the succession undermined perfectly valid lifetime gifts, including trusts, or interfered with the operation of testamentary trusts.

25.12 In relation to the connecting factors for determining the applicable law, the Government agrees that there are advantages and disadvantages to each of the likely connecting factors, but is not convinced that one solution is as yet demonstrably superior to the others. The reply notes that the Government does not have a finally concluded view on permitting a testator to be able to choose an applicable law.

25.13 In relation to jurisdiction, the Government considers that a single exclusive jurisdiction would have considerable disadvantages and would be undesirable. It might, for example, require a foreign court to exercise a discretion under English law, which a foreign court might find impossible due to its lack of familiarity with common law concepts involved, such as proprietary estoppel[69] or the exercise of discretion under the Inheritance (Provision for Family and Dependants) Act 1975. The Government also considers that the courts of the territory in which immovable property is situated should have jurisdiction over that property and is not aware that the present systems in operation in the UK create any significant problems for nationals of other Member States or that UK nationals, properly advised, have to make disproportionately burdensome arrangements in relation to property in other Member States in relation to succession.

25.14 The reply adds that the proposals in the Green Paper that non-judicial authorities of one Member State might have jurisdiction instead of the court designated under a choice of court rule are "fraught with difficulties" and "very unlikely to be acceptable".

25.15 The Government's reply notes that issues of mutual recognition and enforcement are dealt with on the unnecessary and premature assumption that harmonised choice of law and choice of court rules have already been established. Although the Government supports mutual recognition and enforcement measures as effective and efficient ways to make procedures in cross-border cases simpler, cheaper and more certain, it notes that the differences in legal systems across Member States in matters of succession create significant obstacles. These are particularly acute in relation to the suggestion that judgments from one Member State should automatically form the basis for an amendment of land registers in another. The Government states that it has "strong reservations" about the proposals that the same status should be given to succession related deeds as to judgments, as this would present problems in jurisdictions which do not use notaries to the same extent as civil law countries.

25.16 The reply states that the Government has "no overriding conceptual objection" to the creation of a European Certificate of Inheritance, but points out that the certificate would have to be compatible with fundamentally different systems of administration and distribution of estates. The reply notes that a certificate designating an heir (in the civil law sense) would not be effective to entitle that person to possession of property in UK jurisdictions where a grant of representation, or equivalent, in favour of an executor, is required so that the executor can administer and distribute the estate. The reply observes that unless a means can be found to overcome the differences, the certificate would have to perform different functions in different systems which might make it "confusing and cumbersome".

25.17 The reply indicates that the Government has no overriding objection in principle to the creation of a scheme for registering wills in all Member States, including a central European register, but that any registration of wills should be voluntary and should not preclude informal and deathbed wills, both of which are regularly made in UK jurisdictions.

25.18 In conclusion, the Government considers that the Commission would be "unwise" to attempt to carry forward an immense single project covering the whole of the subject matter of the Green Paper in a single stage and recommends that the Commission should divide the work into separate and manageable areas, giving priority to those parts that are likely to be achievable and to bring demonstrable benefits to citizens. The Government also recommends that serious consideration be given to exploring the need for, and the possibility of achieving, an instrument harmonising choice of law rules in matters of succession (excluding administration and distribution of estates) and that if progress could be made in that area, it might be possible to build on that achievement in other areas covered by the Green Paper.


25.19 We are grateful to the Minister for supplying us with a copy of the Government's reply to the Green Paper, the salient parts of which we refer to in this report. It is evident that this is the product of a great deal of careful consideration and consultation in each of the three jurisdictions of the United Kingdom. We agree with the points which have been made and we trust that the Commission will now take careful note of them.

25.20 Since the Green Paper is now effectively spent, we are content to clear it from scrutiny.

68   i.e. rules which would apply even where third countries are involved. Back

69   The equitable doctrine which prevents a person from going back on an assurance given to another and on which the latter has relied to his or her detriment. Such instances may arise, for example, between co-habitees. Back

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Prepared 26 October 2006