Jurisdiction [European Regulation in matters of international successions]

Jurisdiction

The grounds for jurisdiction contained in the Regulation tend to determine the courts that have jurisdiction to rule on the succession of the deceased as a whole (link to explanations of jurisdiction rules).

If, on the death of the person making the disposition, the question of the validity of the disposition of property upon death is discussed, can we implement the rules of jurisdiction contained in the will?

The answer is yes. Articles 4^[1] et seq. tend to determine the rules of jurisdiction in matters of succession and Article 3(1) a^[2] proposes a definition of successions that encompasses dispositions of property upon death.

If, on the death of the person making the disposition, the latter did specify that the disposition would be subject to his national law in accordance with Articles 24(2) and 25(3), does this choice of law allow his heirs to invoke Articles 5 and 6 of the Regulation.

The answer must be no whenever that choice of law concerned only the disposition of property upon death and did not encompass the succession.

If a dispute begins as to the validity of the instrument during the lifetime of the person making the disposition, which rules of jurisdiction apply?

The question is only meaningful when there is an instrument which is intended to produce its effect during the lifetime of the person making the disposition. This will be the case of an inter vivos distribution. In this case, the jurisdiction rules specific to each State must be applied and not the provisions of the Regulation.

Notes

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."
Article 3
Definitions
1. For the purposes of this Regulation:
  - a) ‘succession' means succession to the estate of a deceased person and covers all forms of transfer of assets, rights and obligations by reason of death, whether by way of a voluntary transfer under a disposition of property upon death or a transfer through intestate succession;
  - b) ‘agreement as to succession' means an agreement, including an agreement resulting from mutual wills, which, with or without consideration, creates, modifies or terminates rights to the future estate or estates of one or more persons party to the agreement;
  - c) ‘joint will' means a will drawn up in one instrument by two or more persons;
  - d) ‘disposition of property upon death' means a will, a joint will or an agreement as to succession;
  - e) ‘Member State of origin' means the Member State in which the decision has been given, the court settlement approved or concluded, the authentic instrument established or the European Certificate of Succession issued;
  - f) ‘Member State of enforcement' means the Member State in which the declaration of enforceability or the enforcement of the decision, court settlement or authentic instrument is sought;
  - g) ‘decision' means any decision in a matter of succession given by a court of a Member State, whatever the decision may be called, including a decision on the determination of costs or expenses by an officer of the court;
  - h) ‘court settlement' means a settlement in a matter of succession which has been approved by a court or concluded before a court in the course of proceedings;
  - (i) | ‘authentic instrument' means a document in a matter of succession which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which:
    (i) relates to the signature and the content of the authentic instrument; and
    (ii) has been established by a public authority or other authority empowered for that purpose by the Member State of origin.
2. For the purposes of this Regulation, the term ‘court' means any judicial authority and all other authorities and legal professionals with competence in matters of succession which exercise judicial functions or act pursuant to a delegation of power by a judicial authority or act under the control of a judicial authority, provided that such other authorities and legal professionals offer guarantees with regard to impartiality and the right of all parties to be heard and provided that their decisions under the law of the Member State in which they operate:
  - a) may be made the subject of an appeal to or review by a judicial authority; and
  - b) have a similar force and effect as a decision of a judicial authority on the same matter.
The Member States shall notify the Commission of the other authorities and legal professionals referred to in the first subparagraph in accordance with Article 79.