Challenging the authenticity of the instrument [European Regulation in matters of international successions]

Challenging the authenticity of the instrument: Article 59.2

This part concerns Article 59^[1]

The courts of the Member State in which the authentic instrument was established have jurisdiction to rule on any challenges to the authenticity of that instrument.

As long as this dispute has not been judged, the instrument subject to this challenge does not have evidentiary effect in another Member State.

Example :

The estate of Erick has been shared between his two children, Anna and Frederik, in Lithuania, by a notarial instrument. The estate comprises a holiday home in Greece which has been attributed to Anna. She wants to have this authentic partition recognised in Greece.

Frederik, however, who regrets the fact that the holiday home was not part of his share, realises that the notary who established the partition did not yet have the accreditation required to claim the status of notary.

Frederik will have to challenge the authenticity of the partition of the estate in a Lithuanian court. During this procedure, Anna will not be able to make use of the instrument of partition in Greece.

Notes

Article 59
Acceptance of authentic instruments
1. An authentic instrument established in a Member State shall have the same evidentiary effects in another Member State as it has in the Member State of origin, or the most comparable effects, provided that this is not manifestly contrary to public policy (ordre public) in the Member State concerned.
  A person wishing to use an authentic instrument in another Member State may ask the authority establishing the authentic instrument in the Member State of origin to fill in the form established in accordance with the advisory procedure referred to in Article 81(2) describing the evidentiary effects which the authentic instrument produces in the Member State of origin.
2. Any challenge relating to the authenticity of an authentic instrument shall be made before the courts of the Member State of origin and shall be decided upon under the law of that State. The authentic instrument challenged shall not produce any evidentiary effect in another Member State as long as the challenge is pending before the competent court.
3. Any challenge relating to the legal acts or legal relationships recorded in an authentic instrument shall be made before the courts having jurisdiction under this Regulation and shall be decided upon under the law applicable pursuant to Chapter III. The authentic instrument challenged shall not produce any evidentiary effect in a Member State other than the Member State of origin as regards the matter being challenged as long as the challenge is pending before the competent court.
4. If the outcome of proceedings in a court of a Member State depends on the determination of an incidental question relating to the legal acts or legal relationships recorded in an authentic instrument in matters of succession, that court shall have jurisdiction over that question.