Principle and notions [European Regulation in matters of international successions]

Principle and notions

Fundamental : The principle

In order to guarantee proximity between the law applicable to the succession and the deceased, the Regulation provides that, unless specified to the contrary, the law applicable to the whole of the succession is the law of the habitual residence of the person at the time of his death.

The notion of habitual residence

The Regulation establishes the “habitual residence” at the time of death as the main criterion for determining the law applicable to the succession. It is also the predominant criterion for determining jurisdiction.

The notion of “habitual residence” is not defined by the articles of the Regulation but recitals 23^[1] and 24^[2] do provide some indications: it is generally a matter of determining the State with which the deceased had the closest and most stable connections.

In light of the criteria set out in the Regulation, this is a highly concrete and factual process.

Advice :

First remark: the notion of habitual residence within the meaning of the Regulation does not necessarily match the notion of tax residence (or tax domicile) and/or matrimonial residence (or domicile, although these notions can provide relevant indications.
Second remark: the legal professional must determine the State in which the deceased had “the centre of interests of his family and his social life”, and take into consideration, among other things, the length of time he has been in that State, the circumstances of and reasons for his presence there and the location of his movable and immovable assets, etc.
Third remark: the legal professional should indicate the grounds on which he considers that the deceased has his habitual residence in a given State.

Example :

Francesco, an Italian national who has lived his whole life in Milan where he owns a building and returns regularly, has lived in Geneva for three years for professional reasons, within the framework of a fixed-term expatriation contract. He dies in a traffic accident in Spain. He will be considered as having his habitual residence in Italy if it appears that he has only been living abroad for professional reasons and for a limited period of time, as the deceased otherwise continued to be most closely connected with Italy.

Example :

Jacques is accommodated for two years in a retirement home in Belgium purely for financial and healthcare quality reasons. All his property and family have remained in France where he continued to exercise his voting rights. His habitual residence will be considered as being in France.

Notes

Recital 23
- In view of the increasing mobility of citizens and in order to ensure the proper administration of justice within the Union and to ensure that a genuine connecting factor exists between the succession and the Member State in which jurisdiction is exercised, this Regulation should provide that the general connecting factor for the purposes of determining both jurisdiction and the applicable law should be the habitual residence of the deceased at the time of death. In order to determine the habitual residence, the authority dealing with the succession should make an overall assessment of the circumstances of the life of the deceased during the years preceding his death and at the time of his death, taking account of all relevant factual elements, in particular the duration and regularity of the deceased's presence in the State concerned and the conditions and reasons for that presence. The habitual residence thus determined should reveal a close and stable connection with the State concerned taking into account the specific aims of this Regulation.
Recital 24
- In certain cases, determining the deceased's habitual residence may prove complex. Such a case may arise, in particular, where the deceased for professional or economic reasons had gone to live abroad to work there, sometimes for a long time, but had maintained a close and stable connection with his State of origin. In such a case, the deceased could, depending on the circumstances of the case, be considered still to have his habitual residence in his State of origin in which the centre of interests of his family and his social life was located. Other complex cases may arise where the deceased lived in several States alternately or travelled from one State to another without settling permanently in any of them. If the deceased was a national of one of those States or had all his main assets in one of those States, his nationality or the location of those assets could be a special factor in the overall assessment of all the factual circumstances.