The EU's Regulation on Succession - European Union Committee Contents


CHAPTER 6: The European Certificate of Succession

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.

BOX 9

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 not accurate.

·  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.[34] 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 succession.


34   Evidence of Professor Matthews (Q 27, p 12). Back


 
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