1. Successions with an international element. [European Regulation in matters of international successions]

1. Successions with an international element.

The Regulation does not define the successions it intends to address. It is nonetheless obvious that the Regulation does not apply to purely national successions, but only to successions with an international element.

Likewise, it is unlikely that the Regulation will apply only to cross-border successions or, in other words, to European successions, despite the terms of Point 7 of the Preamble^[1].

Fundamental :

In principle, the Regulation should therefore apply to all successions with an international element.

It should be noted, however, that the Regulation should be set aside, as stated by Article 75^[2], in the presence of an international conventions to which one or more Member States are party at the time of adoption of this Regulation and which concern matters covered by this Regulation. This applies in particular to the Hague Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions. The Regulation does prevail, nevertheless, if the Convention is not binding upon the Member States that are parties to the Regulation.

Warning :

Internationality is a contingent notion, however. To appreciate the international nature of the situation, an in-depth analysis must be conducted of the situation and should not necessarily be limited to the facts at the time of death.

Hypothesis 1: Divergence between nationality and residence

If the deceased had the nationality of one State and resided in another State on the day of his death, there can be no doubt that the succession has an international element.

For the succession of a German who dies while resident in Italy, there are grounds to implement the Regulation.

Hypothesis 2: Assets located in several States

If the deceased has the nationality of the State in which he has his habitual residence, the Regulation must be implemented whenever he had assets located in another Member State.

For the succession of a German who dies in Germany and leaves behind an immoveable property in Italy, there are grounds to implement the Regulation.

Hypothesis 3: A disposition of property upon death established abroad.

If the deceased has the nationality of the State in which he has his habitual residence, the at-least partial implementation of the Regulation may be justified whenever he established a disposition at a time when his situation had an international element.

For a Frenchman residing in France who established a joint will while residing in Germany, there are grounds to implement the Regulation.

Notes

Point 7 of the recital of the Regulation
- "The proper functioning of the internal market should be facilitated by removing the obstacles to the free movement of persons who currently face difficulties in asserting their rights in the context of a succession having cross-border implications. In the European area of justice, citizens must be able to organise their succession in advance. The rights of heirs and legatees, of other persons close to the deceased and of creditors of the succession must be effectively guaranteed."
Article 75
Relationship with existing international conventions
1. This Regulation shall not affect the application of international conventions to which one or more Member States are party at the time of adoption of this Regulation and which concern matters covered by this Regulation.
  In particular, Member States which are Contracting Parties to the Hague Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions shall continue to apply the provisions of that Convention instead of Article 27 of this Regulation with regard to the formal validity of wills and joint wills.
2. Notwithstanding paragraph 1, this Regulation shall, as between Member States, take precedence over conventions concluded exclusively between two or more of them in so far as such conventions concern matters governed by this Regulation.
3. This Regulation shall not preclude the application of the Convention of 19 November 1934 between Denmark, Finland, Iceland, Norway and Sweden comprising private international law provisions on succession, wills and estate administration, as revised by the intergovernmental agreement between those States of 1 June 2012, by the Member States which are parties thereto, in so far as it provides for:
  - a) rules on the procedural aspects of estate administration as defined by the Convention and assistance in that regard by the authorities of the States Contracting Parties to the Convention; and
  - b) simplified and more expeditious procedures for the recognition and enforcement of decisions in matters of succession.