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Anne Guichard

N3T Notaires, Paris

anne.guichard@paris.notaires.fr

The certificate of inheritance issued by a notary under domestic law retains its full place in the settlement of an international succession.

The facts: An only son, of Lithuanian nationality, lost his mother while Regulation (EU) 650/2012 (also called Brussels IV) was applicable to the estate. The deceased, of Lithuanian nationality, was married to a German national and moved to Germany to live with her husband. In July 2013, she executed a will before a Lithuanian notary whereby she made her son her universal heir. She leaves real estate in Lithuania. The German husband, resident in Germany, waives all inheritance rights and consents to the jurisdiction of the Lithuanian courts. The son, resident in Lithuania, asks the Lithuanian notary to issue a national certificate of inheritance in order to register the property in his name. The notary refuses on the grounds that the habitual residence of the deceased within the meaning of the European Succession Regulations is not in Lithuania and therefore that he is not competent to establish such a certificate. After various appeals, various questions are put by the highest Lithuanian Court to the Court of Justice of the European Union. As usual, the decision is quite long and detailed and the judgment is interesting for different reasons.

It is very didactic since it establishes the order in which it is necessary to work when settling the estate. First, does the succession have a cross-border impact? If the answer is yes, then Regulation 650/2012 applies. Second, the habitual residence must be determined. There can only be one, since it is the connecting factor which in principle defines both jurisdiction and the law applicable to the succession. Generally, the court of a Member State (that of habitual residence) will apply its own law. Only the authorities of that Member State can then issue a European Certificate of Succession (ECS). It is imperative to check whether a choice of applicable law has been made. If such a choice of law has been made, the law applicable to the succession will be that of the chosen national law. The successors can then make a choice of forum for the courts of the state of nationality: the court, thus having jurisdiction, will apply its own law.

The Court of Justice of the European Union indicates that, when a notary cannot be qualified as a ‘court’ within the meaning of the Regulation, this notary, even if she or he is not competent to issue an ECS, can still issue a domestic certificate of inheritance provided for by its internal law. In addition, if this certificate of inheritance meets the conditions of authenticity set by the same Regulation, it can circulate under the favourable conditions provided for by the Regulation. For example, French notaries can therefore continue to establish a French certificate of inheritance (called acte de notoriété) under French law in international successions, even if they are not competent to issue an ECS. They may also use certificates of inheritance issued by notaries from other Member States, even if these are not competent to issue an ECS. This national certificate of inheritance may even, as an authentic act, circulate in the Member States within the meaning of the Regulation.

The Court of Justice of the Europen Union also explains that when the conditions set by Article 83, section 4 are met, and without taking into account any wishes of the deceased, his national law is deemed to have been chosen. Art 83, section 4 is a transitional disposition of the EU Regulation on successions which decides that:

‘if a disposition of property upon death was made prior to 17 August 2015 in accordance with the law which the deceased could have chosen in accordance with this Regulation, that law shall be deemed to have been chosen as the law applicable to the succession.’

In this event, the heirs may use the provisions of Article 5 of the Regulation to elect for the court of the Member State whose law has been chosen by the deceased to have jurisdiction. This ensures that the court which has jurisdiction applies its own law (national law) to the estate, which it certainly knows better than the court of the last habitual residence. This will even be more judicious if the successors still reside in the Member State of which the deceased had the nationality.

Practical advice

Notaries in Member States, as soon as they do not qualify as a jurisdiction, can establish a domestic certificate of inheritance in any succession, even international, without worrying about the rules of jurisdiction provided for by EU Regulation 650/2012. However, they can only issue a ECS if the courts of their state have jurisdiction within the meaning of the Regulation. It will not always be necessary to go through the difficulties of obtaining a ECS to settle a cross-border estate.

Every cross-border practitioner should always keep in mind Article 83, section 4 (deemed professio juris) as soon as a will (or other disposition of property) has been executed by the deceased before 17 August 2015 in the country of his or her nationality. Such a will, if made in accordance with the law of the state from which the deceased was a national, constitutes a deemed choice of law for the law of this state.

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