For over a week, the European regulation 650/2012 more favourably known as Brussels IV has been in force.
What this means is that where the application of succession law is brought into question across participating member states, this regulation will apply.
In short the country of the deceased’s last habitual residence will have jurisdiction over the estate. The testator however can elect in their Will to have their country of nationality’s succession legislation apply to their assets. In furtherance to this, Article 22 allows an individual to choose the law of their nationality to apply to the succession of their estate.
Whilst there are 3 countries (Denmark, Ireland and the UK) who have opted out they are still member states to E.U treaties. Articles 21 and 22 of the E.U Treaties dictate that these countries are not bound by the application of the new regulation but there is nothing to state in the regulation that these countries are excluded.
A point of contention on this regulation surrounds the principle of Renvoi – ‘a conflict of laws’ and whether this applies if a state not bound by the regulation applies any article. To expand the uncertainty therefore it is unknown what should happen regarding the prevailing legislation if a state is involved in cross border succession is not bound by the regulation and conflicts with the legislation of a member state who is. This will only be resolved after decision by the EUCJ.
It has been suggested that anyone with immovable assets in any participating member states but connected to non-participating jurisdictions make an election under Article 22 of the regulation.
In principle, now that the regulation is in force, those people that would be in effect of the regulation may choose to create a Will making reference to the legislation that they choose to apply under article 22. Not doing so, it would be assumed that the law governing their place of habitual residence will be said to apply.
As such it is suggested that if you are a UK national, habitually resident in Spain for example, you have the opportunity under Article 22 to elect for English and Welsh law to apply to the succession of your Spanish assets in a Spanish Will (Professio Juris – stipulating the law that will apply to an agreement).
The effects of this new regulation are by no means certain at present and its application will only become clear after the Court of Justice for the European Union have been forced to take decision.