'The EU succession regulation: achievements, ambiguities, and challenges for the future' by Maksymilian Pazdan and Maciej Zachariasiewicz in (2021) 17 Journal of Private International Law comments
The quest for uniformity in the private international law relating to succession has a long history. It is only with the adoption of the EU Succession Regulation that a major success was achieved in this field. Although the Regulation should receive a largely positive appraisal, it also suffers from certain drawbacks that will require a careful approach by courts and other authorities as to the practical application of the Regulation. The authors address selected difficulties that arise under its provisions and make suggestions for future review and reform. The article starts with the central notion of habitual residence and discusses the possibility of having a dual habitual residence. It then moves to discuss choice of law and recommends to broaden further party autonomy in the area of succession law. Some more specific issues are also addressed, including legacies by vindication, the relationship between the law applicable to succession, the role of the legis rei sitae and the law applicable to the registries of property, estates without a claimant, the special rules imposing restrictions concerning or affecting succession in respect of certain assets, as well as the exclusion of trusts. Some proposals for clarifications are made in that regard.
The authors argue
The objective of the present article is to discuss some of the provisions and solutions adopted in the EU Succession Regulation. It does not intend to be a comprehensive commentary on the Regulation. Rather, it takes the Regulation’s state of play and purports to address some of the difficult issues, as identified in the scholarly discussions or already experienced in the legal practice. The article focuses on issues of applicable law, dealing with other questions (jurisdiction, certificates of succession) to a lesser extent. The authors hope that the effort made herein can contribute to any eventual, future improvements to the Regulation. By 2025 the Commission is obliged to submit a review report on the application of the Regulation, which could also be accompanied by a proposal for amendments (in accordance with Article 82 of the Regulation).
A secondary goal of the present article is to attempt to depict the work of the Polish doctrine dealing with the EU Succession Regulation. Although the Regulation has spurred great interest among Polish scholars and led to intensive debates relating thereto, these works are – for obvious linguistic reasons ‒ generally unknown to the wider European audience. The article considers interpretations of the Regulation in Poland alongside the debate in European academia. ...
The central connecting factor used in the Regulation is the habitual residence of the deceased at the time of death. It determines both the general jurisdiction of the courts in succession matters (Article 4), as well as the law applicable to the succession as a whole (Article 21). This should be welcomed even if – as we will see shortly – it poses various difficulties of its own. The habitual residence has already been adopted in the 1989 Hague Succession Convention,11 as well as in several EU private international law regulations. Reactions of the governments and other stakeholders when the habitual residence was proposed in the Green Paper were generally positive. It was thus a natural choice for the EU legislator to opt for that connecting factor also in the context of succession matters.
Habitual residence is an autonomous concept under the Regulation. It should be understood without reference to national laws and given a European meaning. It is a factual, if not casuistic, and somewhat vague concept so that the habitual residence is determined in each case by factual circumstances that connect the deceased with a legal system of a given state and its territory. As noted in Recital 23 of the Regulation: “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” is necessary. The Court of Justice already had the opportunity to make clear in a judgment in case C-80/19 E.E. that all the circumstances must be taken into account in making such determination. The Advocate General opined that a joint examination of the facts relating to the stability of the deceased’s situation must be carried out especially in complex situations.
The above means that the habitual residence is determined on a case-by-case basis by the national courts, in light of the totality of factual elements present in the proceedings. As a practical matter, the evidence available to the court will be of the essence here. The role of the Court of Justice of the European Union is on the other hand limited. While the Court is competent to set the detailed criteria that would precisely define the concept of habitual residence (and its active involvement is certainly welcomed), it is ultimately up to the national courts to establish a practice that will provide a truly uniform understanding of the notion. For these reasons, habitual residence might be more difficult to ascertain than the nationality. It introduces greater uncertainty.
The experience under other EU regulations that use habitual residence as a connecting factor will certainly be helpful. This includes, in particular, the case law of the CJEU under the Brussels IIa Regulation. One should nevertheless keep in mind that the concept is functional in the sense that its understanding under a given set of conflict-of-laws rules depends on the role it plays. Although cross-references and uniformity in interpretation standards are helpful, the habitual residence of the deceased for succession law purposes should, in our view, not necessarily be understood in the same manner as, say, the habitual residence of the seller to determine the law applicable to the sales contract under the Rome I Regulation. One must note, however, that many authors argue for the uniform interpretation of the concept of “habitual residence” under all EU instruments dealing with private international law.
Habitual residence is defined as the place where the centre of a person’s vital interests (centre of a person’s life) is located. Under the Succession Regulation, this refers to the place where the deceased had the centre of his or her life. Recital 23 of the Regulation underlines that in determining this place, “the duration and regularity of the deceased’s presence in the State concerned and the conditions and reasons for that presence” are particularly important. The reasons thereto include both personal as well as professional motives for a stay in a given country. The whereabouts of the family home are thought to be particularly relevant in that regard, but the location of the business, employment, and other social relationships are also of some weight. Still, it is submitted that in the context of the Succession Regulation, family connections are somewhat more important than professional relationships, given the goals of the succession law in general (to pass the property to the relatives and other people close to the deceased). The weight of the family relations is different under the conflict-of-law rules relating e.g. to contractual obligations, where the habitual residence of a natural person acting in the course of his or her business activity is expressly defined as his or her principal place of business. Thus, for example in a case where a person established his or her family home and most personal and social relationships in country X, while driving every day to work in country Y, it should normally be assumed that he or she had his or her habitual residence in country X. However, if that person’s sole connection to country X was that he or she rented an apartment to sleep overnight, but had no family or social life there (and his or her social relationships were rather related to the work carried out in state Y), it would probably have to be concluded that he or she had their habitual residence in country Y (with reservation to other factors that could point to different conclusions). The suggestion that the habitual residence is “where one comes to rest, where one sleeps” – although often helpful ‒ should thus not be taken as an absolute rule.
In difficult instances, when a person has significant connections with more than one state (e.g. living alternately in more than one state), the nationality of the deceased, as well as the location of the assets, might also be of relevance. However, as rightly noted by AG Campos Sánchez-Bordona in his Opinion in case C-80/19 EE, these factors have only subsidiary nature. While the facts in that case do not seem to be of the type where subsidiary factors should play a pivotal role in determining the deceased’s habitual residence, such cases might certainly occur. One example could be that of an elderly person who spends half of the year in a warmer climate zone (and has already built a social life there) and the other half in his or her home jurisdiction. A similar difficult case arises when a wealthy individual spends parts of the year in different countries, where he or she possesses homes, and important social and family connections, thus being significantly connected with each of these countries. In such cases, the nationality and the location of the deceased’s assets could constitute a decisive consideration.
These subsidiary factors do not play such a substantial role in situations when the deceased acquires consecutive habitual residences at different points in time during his or her life. An example here is of a person who upon retirement transfers the centre of life to a different country. If the stay there is stable and affects a person’s social connections to the extent that one may conclude that he or she has settled there, one would normally have to conclude that this constitutes the acquisition of the new habitual residence. On the other hand, a temporary departure for another country, e.g. as a student participating in an exchange or international programme, or as a posted worker, does not normally imply a change in the habitual residence.
A feature – and possibly a downside ‒ of the habitual residence is that it is a less stable connecting factor than that of nationality. It changes more easily with people moving from state to state. Nevertheless, as underlined in Recital 23 to the Regulation, it “should reveal a close and stable connection.” A temporary stay in another country (such as to study or being posted overseas for work), even if lasting relatively long, does not give rise to a change in habitual residence in the sense of a true change to the centre of a person’s life. Therefore, the habitual residence is not as vulnerable to changes and manipulation (e.g. by avoiding forced heirship rules of the country, where the deceased family lives) as some think.
It might be noted that in States which had previously used nationality as the connecting factor determining the governing law, some sentiment is sometimes expressed given the need to drop their traditional approach in favour of habitual residence. The sentiment may be felt particularly in countries from which there has been a substantial amount of emigration, such as Poland, which may no longer apply their own law to the succession of their citizens who left the country. This also includes European citizens who emigrated to the non-EU Member States. In the case of Poland, that would include a large Polish community living in the United Kingdom and the United States. Given that the EU Succession Regulation grants subsidiary jurisdiction to the courts of a Member State where the assets of the estate are located (Article 10), a court in a Member State could be seised to decide with respect to the succession of a deceased habitually resident in a non-Member State. Nevertheless, under the universally applicable rule expressed in Article 21, such court would have to apply the law of a non-member state in question as governing the succession.
While such a sentiment, particularly among politicians and other policymakers, might be understood, this should not be taken as criticism. It is our view that in a world where mobility of the people became easy (even if rendered more difficult by the recent outbreak of COVID-19 pandemic), nationality lost much of its relevance from the perspective of private international law. Habitual residence better reflects the modern social and economic reality, especially within the EU, where it promotes integration. Volatile and uncertain as it is, habitual residence provides a much closer and genuine connection of the deceased with a given legal system. The principle of proximity thus mandates that the issues relating to succession are subjected to the law of the state where the deceased had his or her habitual residence.
The New Zealand Law Commission Issues Paper 'Review of Succession Law: Rights to a person’s property on death - He arotake i te āheinga ki ngā rawa a te tangata ka mate ana' comments that
Many parts of Aotearoa New Zealand’s succession law have not been comprehensively reviewed in decades. Much of the key legislation was drafted in the mid-20th century. Since that time, Aotearoa New Zealand has undergone significant social change, affecting the relationships we enter and what we think family means. The need for law-making to properly consider the Crown’s obligations under te Tiriti o Waitangi | Treaty of Waitangi is also better recognised by the Crown. The law may not have kept pace with these changes or the reasonable expectations of New Zealanders. This review of succession law follows our review of the Property (Relationships) Act 1976, which concluded in 2019.
In our final report 'Review of the Property (Relationships) Act 1976 | Te Arotake i te Property (Relationships) Act 1976', we recommended that the Act’s provisions that apply when someone in a relationship dies should be considered in a broader review of succession law. The Government accepted the recommendation. In July 2019, the Minister Responsible for the Law Commission included a review of succession law in our work programme.
The Commission's terms of reference for the review
require us to consider who should be entitled to claim property from a deceased person’s estate, with a particular focus on the deceased’s partner and other members of the family.
The particular statutes under review are the: (a) Property (Relationships) Act 1976; (b) Family Protection Act 1955; (c) Law Reform (Testamentary Promises) Act 1949; and (d) Administration Act 1969. The terms of reference require us to consider how succession law should address areas of particular concern to Māori. We are not reviewing the regime for succession to Māori land under Te Ture Whenua Maori Act 1993 but are considering questions relating to succession generally that may be of particular concern to Māori.
The Issues Paper is organised into three parts:
(a) Part One examines the basis for good succession law in contemporary Aotearoa New Zealand.
(b) Part Two addresses the entitlements to and claims against estates.
(c) Part Three considers making and resolving claims.
They are structured as follows.
Part One considers both a conventional state law approach to succession law and an ao Māori approach to s In Chapter 1, we examine the changing demographics in Aotearoa New Zealand. We identify criteria that we have used when developing the proposals presented in this Issues Paper. We conclude the chapter by presenting our proposal that there should be a single, comprehensive statute that governs claims against estates (the new Act).
Chapter 2 lays out our framework for developing good succession law from an ao Māori perspective. We acknowledge the significance of succession in te ao Māori. We explore the tikanga relevant to succession. We explain how this tikanga is an independent source of rights and obligations in te ao Māori and the first law of Aotearoa. We recognise that this review engages te Tiriti guarantee of tino rangatiratanga and how that requires Māori to retain control over tikanga.
In Chapter 3, we address a surviving partner’s relationship property entitlements. We propose that a surviving partner of the deceased should continue to have the right to choose to divide the couple’s relationship property or to take only what is provided to them under the deceased’s will or in an intestacy.
In Chapter 4, we propose the repeal of the FPA. In its place, we propose the new Act provide for certain family members to claim “family provision” from the estate. We present options for the surviving partner, children under a prescribed age and disabled children of the deceased. We also present an option for all children of the deceased to claim family provision in the form of a “recognition award”, although for reasons given in Chapter 4, we do not favour this option.
Chapter 5 examines the law that applies when a person claims against an estate in respect of the contributions they have made towards the deceased or their estate. We propose a new statutory cause of action to be contained in the new Act to codify the law in this area.
Chapter 6 addresses the intestacy regime and whether it reflects the way most intestate people in contemporary Aotearoa New Zealand would want their estate distributed when they die. We propose options for which family members should succeed to intestate estates, in what shares and in what priority.
In Chapter 7, we focus on succession to taonga. We consider whether the succession to taonga should be excluded from state law and instead be governed by tikanga Māori.
Chapter 8 suggests that responsible kāwanangatanga involves recognising and providing for Māori perspectives. We ask how tikanga Māori might recognise and respond to various aspects of succession. We focus on the tikanga relating to the expression of testamentary wishes, obligations to a surviving partner and other whānau members (particularly tamariki), and obligations to someone who has contributed to a deceased or their estate.
In Chapter 9, we examine what property should be claimable under the new Act, the respective priorities between claims, and options for what anti-avoidance mechanisms the new Act might incorporate to access property that may fall outside an estate.
Chapter 10 explores the court’s power to grant individuals use and occupation orders over an estate. We propose the court should have powers under the new Act to grant rights to use or occupy property of the estate to meet the needs of the deceased’s surviving partner or minor or dependent children.
In Chapter 11, we discuss the law that governs agreements people may make during their lifetime that determine rights against their estates when they die. We also look at the law that applies to parties wishing to enter agreements to settle disputes. We propose options for when and how parties can make these types of agreements.
Chapter 12 looks at the jurisdiction of the courts to hear and determine claims under the new Act. We propose that te Kōti Whānau | the Family Court and te Kōti Matua | the High Court should hold concurrent first instance jurisdiction, except that te Kōti Matua | the High Court should continue to hold jurisdiction for issues concerning the administration and distribution of intestate estates.
Chapter 13 explores issues with the law and procedure relating to how disputes are resolved when they go to court. We address matters such as time limits, disclosure of information, evidence, representation of parties, costs and delays in the courts.
Chapter 14 focuses on the law and procedure that applies to the resolution of disputes out of court. We look at various matters such as the legality of settling some claims without court involvement, the procedure that should apply to settlement and the representation of parties.
In Chapter 15, we look at the resolution of disputes from an ao Māori perspective. We examine ways disputes may be resolved in a way consistent with tikanga Māori, and we ask what can be done to support these processes.
In Chapter 16, we address the duties that should fall on personal representatives when claims are made against an estate under the new Act.
Chapter 17 examines the cross-border elements to claims against an estate. It covers matters such as choice of law rules, foreign law agreements, enforcement and jurisdiction.
Lastly, Chapter 18 covers a range of other reform issues. We emphasise the need for education about the law relating to succession. We look at the revocation rules under sections 18 and 19 of the Wills Act 2007 when people enter or leave marriages or civil unions. We address the relationship between social security and family provision claims. Lastly, we comment on the court’s power to validate wills under the Wills Act, multi-partner relationships and distributing estates without grants of administration.
'The end to testamentary freedom' by Richard Hedlund in (2021) 41(1) Legal Studies 55-72 comments
Total testamentary freedom in English law came to an end with the passage of the Inheritance (Family Provision) Act 1938, since replaced by the Inheritance (Provision for Family and Dependants) Act 1975. The Act introduced the family provision rule, which allows disinherited family members to apply to court for a financial award out of the estate. This paper critically re-examines the parliamentary proceedings, held between 1928 and 1938, which debated the merits of testamentary freedom and the need to limit the doctrine by introducing the family provision rule, then already in force in many of the Dominions. There were strong social arguments in favour of redressing unjust disinheritances, pitted against core values of personal freedom and private ownership. The paper will show that there were compelling merits in introducing the family provision rule and the Act has stood the test of time.
Hedlund states
In July 1939, the Inheritance (Family Provision) Act 1938 (the Act) came into force. As a result, an ‘Englishman's unlimited freedom to cut off his children without a penny is gone’. Prior to its introduction, English testators had enjoyed total testamentary freedom, with the right to disinherit their spouse and their children. That freedom stood in stark contrast to civil law jurisdictions where the doctrine of forced heirship applies. In those jurisdictions, a surviving spouse or child has a legal right to inherit. However, the freedom enjoyed by English testators was controversial. It was argued that unfair cases arose, for example where a ‘dutiful and loyal’ wife had been disinherited in favour of a mistress. Bit by bit, the call to limit testamentary freedom gained traction and support with the public and with Parliamentarians, culminating in the Act. This paper will critically reassess the Parliamentary proceedings that led to the passing of the Act. What arguments were made for and against it? What hopes and fears were expressed? How have these hopes and fear been met or dispelled in the decades since? The arguments raised in Parliament at the time closely mirror contemporary arguments about the application of the Act's successor, the Inheritance (Provision for Family and Dependants) Act 1975. The reassessment of the Parliamentary proceedings may help to find a resolution.
