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
The Regulation provides several distinct grounds of competence and the notary must indicate on what basis he considers himself to be competent by checking the corresponding box.
These grounds of competence are set out below.
The Regulation establishes the “habitual residence” at the time of death as the main competence criterion.
Although the articles of the Regulation do not define this notion, recitals 23[1] and 24[2] do provide some indications.
The notion of habitual residence within the meaning of the Regulation does not necessarily mean the tax residence (or tax domicile) and / or matrimonial residence (or matrimonial domicile).
The notary must determine in which State 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.
It is always recommended that the notary should indicate in Point 4.2 on the form the grounds on which he considers that the deceased has his habitual residence in a given State. The evidence leading to him determining the habitual residence as being in a given State may also be compiled in the succession file.
François, who is of French nationality and has lived his whole life in Versailles where he owns a building and returns regularly, has lived in Geneva for professional reasons for three years. He dies in a traffic accident in Spain.
He will be considered as having his habitual residence in France if he has only been living abroad for professional reasons and for a limited period of time (eg. defined by his employment contract).
Jacques is accommodated in a retirement home in Belgium purely for financial and healthcare quality reasons. All his property and family remained in France where he continued to exercise his voting rights.
His habitual residence will be considered as being in France in light of the criteria set out in recitals 23[1] and 24[2].
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.
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.