Lis pendens [European Regulation in matters of international successions]

Lis pendens: Article 17

This part concerns Article 17^[1]

Where proceedings involving the same succession are brought in two different courts, the court that is seised second shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. If the first establishes its jurisdiction, the second shall decline jurisdiction in its favour.

The date on which the courts were seised is determined by Article 14^[2].

Example :

Françoise, a Belgian national, has resided in Greece since she retired in 1990. She has three children: two daughters from a first marriage, who reside in Belgium, and one son from a second marriage, who lives with her in Greece.

On 1st November 2015, knowing that she was very ill, Françoise established a will specifying Belgian law to govern her succession. She died soon afterwards, on 27 November 2015.

For several years, the children of Françoise have not been getting on with each other.

On 15 December 2015, her eldest daughter seised the Belgian Succession Court, invoking its jurisdiction on account of the choice made by her mother.

On 17 December 2015, her son seised a Greek succession court claiming that the last residence of Françoise was in that country and that all her assets were located there.

The Greek court that is seised second must stay its proceedings until the Belgian court has ruled on its jurisdiction.

The Belgian court could decline jurisdiction in favour of the Greek court, considering that that was the last place of habitual residence of the deceased (Article 4^[3]) and that the Greek court is therefore better placed to rule on the succession (residence of an heir, all assets located in Greece).

Advice :

A ruling should be issued promptly on jurisdiction to ensure that the dispute is referred to the competent court.

Notes

Article 17
Lis pendens
1. Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.
2. Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.
Article 14
Seising of a court
For the purposes of this Chapter, a court shall be deemed to be seised:
- a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the defendant;
- b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court; or
- c) if the proceedings are opened of the court's own motion, at the time when the decision to open the proceedings is taken by the court, or, where such a decision is not required, at the time when the case is registered by the court.
Article 4
- "General jurisdiction
  The courts of the Member State in which the deceased had his habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole."