CHAPTER 6: The European Certificate
124. The proposal would create a European Certificate
of Succession. This would be a certificate in standard form produced
by a court in a Member State having jurisdiction in accordance
with the general rules on jurisdiction set out in the proposal.
The Chancery Bar Association highlighted that the definition of
a "court" in Article 2 was wide enough to enable notaries
authorised by the internal law of their Member State to issue
an ECS (p 61).
125. The certificate would set out specific information
relating to a succession including: the grounds for the issuing
court to assume competence to do so, information concerning the
deceased and the death, the applicable law and the reasons for
determining it, the elements of fact or law giving rise to the
power to administer the succession and what those powers are,
who is entitled to get what and any restrictions on the rights
of the heir, and details of the applicant for the certificate.
126. Article 42 of the proposal sets out the
effects of an ECS. This is outlined in Box 9. These would last
for three months after which a renewed copy would be required.
The effect of an ECS under the proposal
· An ECS would be recognised automatically
for the purposes of the administration of the succession and determining
who is entitled to get what of the deceased's property.
· The content of an ECS would be presumed
accurate in all Member States throughout its period of validity.
· Any person who passed property in accordance
with an ECS would be released from their obligations under the
succession unless they knew the contents of the ECS were not accurate.
· Those who acquired succession property
in accordance with an ECS would be considered to have properly
acquired it unless they knew that the contents of the ECS were
· The ECS would be a valid document for
allowing inherited property to be registered.
127. Two initial points can be made. First, an
ECS would be more readily recognised in other Member States than
a court decision, even if it was issued by a notary. Secondly,
an ECS could only be rectified by the issuing authority.
128. Richard Frimston considered that an ECS
could assist UK personal representatives to administer a succession
involving property in a Member State which does not use personal
representatives for this purpose (Q 87). It is not clear,
however, how an ECS would be issued in the UK. The Notaries Society,
in a separate submission, called for clarification, and pointed
to the suitability of notaries to undertake this task in view
of their existing special involvement in international law (p 85).
129. Professor Matthews gave evidence of
the drawbacks of an ECS for a UK succession. At a practical level
it would not be suitable to deal with the greater complexities
that could arise in a UK succession than in most other Member
States whose property law tended to be simpler, and where there
were more often a limited number of heirs who normally acquire
absolute ownership of the property they have inherited. He suggested
that none but the simplest English succession could be summarised
in the way contemplated by the proposal (Q 27, pp 11-12).
130. With regard to how an ECS could be used
in the UK, it is not clear whether an ECS could be used to secure
the transfer of property in the UK to the heir without obtaining
a grant of representation in accordance with ordinary UK procedures.
Richard Frimston interpreted the proposal as meaning that an ECS
could be used to obtain a grant, but not to secure the release
of property without one (QQ 87-89). Jonathan Faull indicated
that he was consulting Commission lawyers as to this interpretation
(Q 119). This is an important question because in the UK
the internal procedures ensure the payment of tax. This is not
the case with an ECS.
131. The fact that, under the proposal, an ECS
would have to be recognised in all Member States, would be presumed
accurate and could only be rectified by the court which issued
it has important consequences. It means that an inaccurate statement
in an ECS issued in another Member State could be hard to correct,
and in the meantime it would be necessary to proceed on the basis
of the ECS until it was altered. An inaccurate statement in an
ECS as to the nationality or habitual residence of the deceased
would mean that effect could not be given to a choice made by
a testator of the applicable law to be applied to a succession
until the issuing court had been persuaded to rectify or cancel
it. These problems would be exacerbated by the fact that an incorrect
ECS would provide absolute protection to a third party acquiring
property on the back of an ECS in the absence of knowledge of
the inaccuracy. This
would presumably be the case even if it were subsequently rectified.
132. Professor Matthews accepted that an
ECS could be useful if its effect was to provide evidence of the
matters stated in it but was not conclusive (QQ 24-27). Richard
Frimston cited the example given in Box 4 as an occasion when
an ECS would have enabled an English grant of probate to be obtained
without difficulty (Q 87). The joint evidence of the Law
Society, STEP and the Notaries Society recognised the need for
the ECS to be able to accommodate the different laws of different
Member States, but supported an ECS provided it were subject to
local procedures in the Member State of recognition. It would
not be acceptable for an ECS to be used, for example, to secure
the release of money from a UK bank account without securing a
grant of representation or paying taxes (p 83).
133. Jonathan Faull emphasised that an ECS would
reflect a genuine understanding of the situation by the court
issuing it and could be changed if that proved incorrect. He regarded
it as sensible for any error to be corrected at source (QQ 120-121).
134. The Government evidence was that they were
still considering the provisions on the ECS, as they appeared
particularly obscurely drafted. It was important that the ECS
should not by-pass the existing system in the UK for administering
succession and collection of tax (Q 163).
135. We do not support an ECS which overrides
national law and practice as a consequence of being automatically
recognised in every Member State and treated as conclusive of
the matters stated in it. We can, however, see advantages in an
ECS which facilitates the operation of national procedures by
providing non-conclusive evidence of the salient aspects of a
34 Evidence of Professor Matthews (Q 27, p 12). Back