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Choice of Law Clause in Wills
The EU Succession Regulation (650/2012) came into force in August 2015, with the intention of simplifying and clarifying succession procedures and applicable laws, for Europeans living in different countries than that of their origin, and owners of property in multiple cities.
Currently the applicable law to a succession, in accordance with this Regulation, is that of an individual’s “habitual residence”, of which there is no definition. The interpretation of “habitual residence”, three years on, remains a subject of debate, especially in situations whereby an individual officially lives in one country, but holds assets and spends a frequent amount of time in another country, or in a situation where an equal amount of time is spent in several countries, throughout the year.
The law applicable to a person’s succession is significant, because each country has its own succession laws. Italy, France, and Switzerland, for instance, have forced heirship laws, whereby a proportion of the Estate must be left to the spouse/children. A will in conflict with this can be successfully contested by the legitimate heirs (whereas countries such as England have complete freedom of testamentary disposition). Accordingly, an English national in Italy cannot leave any living spouse or child out of their will – unless a “Choice of Law” clause is written in.
This clause allows for the testator to choose the law of their nationality to apply to their succession (as opposed to the laws of their “habitual residence”). Taking the above example, the English national living in Italy, can insert a clause in their will choosing English law to apply to their will and succession, thereby removing the risk that any relatives contest their will, on the basis of local forced heirship laws.
There are transitional provisions in the Regulation which apply to wills written before the Regulation came into force. These provide that there could be an implied choice of a person’s national law in a will written before 2015, for example if the will strictly follows the format required by that national law.
There are still several potential issues; for example, a country is not obliged to apply foreign law, and its courts will not if it is contrary to public order. French courts will not apply another country’s laws to one of its citizen’s succession, if the heirs are put in the situation of economic need as a result.
Another unclear position is whether the United Kingdom accepts the choice of law clause. While other EU countries ratified this Regulation, the United Kingdom did not, and it was long debated whether the U.K. was to be considered a “Third Party State”. This has been somewhat clarified with “Brexit” in 2016, and the United Kingdom can now safely be considered a Third Party State, like the United States.
There has not been near enough case law, during these first three years, to establish the success of the Regulation, what the clear views of the European courts may be, nor enough to remove any ambiguities present in the Regulation itself.
Whilst lawyers eagerly await any case law regarding the subject, we advise all our clients, who either live in Italy, or who have property in this country, not only to write a will, but to insert a clause which clearly chooses the law of the country that they wish to apply on their succession.
We have been receiving an increase in enquiries in relation to past criminal convictions (which can include cautions) and what the Italian law states in relation to criminal convictions when making an application for Italian citizenship on the basis of marriage or residency.
Citizenship on the basis of marriage: Applying for Italian citizenship on the basis of marriage is an automatic right. Citizenship on the basis of marriage can only be denied to those who have a criminal record for a serious crime committed either in or outside of Italy. It can also be denied to those who are considered a threat to the national security and public order.
Article 6 (1) of Act No. 91 of 5 February 1992 is the law that should be considered and clearly states the following reasons that shall prevent the acquisition of citizenship on the basis of marriage:
a) Conviction for one of the offences provided for in Volume II, Title 1, Chapters I, II and III of the Criminal Code
b) Conviction for an offence committed with criminal intent for which the law prescribes a statutory penalty of a maximum of at least three years imprisonment, or conviction by a foreign judicial authority for a non-political offence for which the law prescribes a custodial penalty of more than one year, when the foreign sentence has been recognized in Italy
c) The existence, in the case concerned, of substantiated reasons relating to the Republic’s national security
The acquisition of nationality by marriage is not possible by foreigners with criminal convictions for offences for which a punishment of at least three years of imprisonment was imposed. Italian citizenship will also not be granted to those who have committed criminal offences abroad for which a punishment exceeding one year is imposed for a non-political offence. Rehabilitation ceases the preclusive effects of the conviction as confirmed in sentence n.6391 of the Tribunal of Rome dated 29 March 2016.
Citizenship on the basis of residency: Whether applicants are applying for naturalisation as an Italian citizen under the 3, 4 or 10 year route all citizenship applications must be accompanied by criminal record certificates from all countries that the applicant has resided in since he/she was 14 years old. These need to be legalised by the Foreign Office of the country of issue and have a certified Italian translation attached.
British Criminal Record Certificate (ACRO) – Applicants for Italian citizenship who have spent a period of residence or all of their lives in the UK prior to arriving in Italy will require an ACRO criminal record certificate. Although specific for those who have resided in the UK it can act as an example as to when and how criminal convictions are deemed “spent” and how this affects what information will be provided about the applicant on their criminal record certificate. We refer to an ACRO manual called ‘Step-down Model’ dated 5 January 2018 which explains how offences for certifcates of convictions are filtered. Offences are ‘stepped down’ after a set time period whilst taking into account the seriousness of the offence, the age of the subject when the offence was committed, the outcome and the sentence imposed. The categories are A, B and C. A being the most serious and C the least serious. Where an offence has been “stepped down” this will be identified on the ACRO certificate with the publication of ‘No Live Trace’ as opposed to someone with no conviction at all where it would state ‘No Trace’.
Whether the Ministero dell’Interno will carry out further investigations as to why on the applicant’s certificate it states ‘No Live Trace’ as opposed to ‘No Trace’ is a burden that lies on them and entirely within their rights as the governmental body making a decision on the application.
Ultimately, what will be the deciding factor is the length of the conviction and for what crime. A grant of “concessione” of Italian citizenship via the residence route is discretionary, so the existence of any prior conviction, however minor, will be looked at together with all other grounds of a person’s application.
INTERNATIONAL CONTRACTS: ARE THERE LIMITS TO THE PARTIES’ POWER OF CHOICE OF APPLICABLE LAW?
(EU regulation Rome I, Nikiforidis, necessary application of rules, lois de police (rules of application))
1) How do you identify the law applicable to an international contract?
When there is a foreign element in the creation of a contract (i.e. one of the parties is foreign, there is a foreign object or the execution of the contract could potentially be carried out in accordance with foreign law) national law cannot always be said to be applicable. For this reason it is useful to analyse the different methods of identifying the applicable law when signing international contracts, and what limits are imposed on the signing parties.
a) Firstly it is necessary to clarify what is meant by the law applicable to the contract: it is the legal order which regulates the interpretation, execution, the consequences of the non-execution or the invalidity of the contract itself. This law must not be confused with the law that applies to the forum, i.e. the set of rules governing the procedure should a dispute arise.
b) In principle, it is the parties who determine freely and in agreement which law will be applicable to the contract, which law will be the lex mercatoriae. the applicable national law of one of the parties.
c) If the aforementioned principle is valid, it is also true that there are priority rules that place themselves above the free determination of which national law can apply, which often leads to doubts as to which is the applicable national law of the contract.
2) Mandatory and non-mandatory material rules
a) The first rule that arises from the choice that the parties have, is the material rule of national origin, or the rule which results from the instruments of international payment, such as money, based on the principle of monetary sovereignty. Payment can be accepted in foreign currency, but the object of the contract must be based on this.
b) Other types of material rules are conventions, such as the Vienna Convention on International Sales. In the field of transport, for example, specific rules are set on the responsibility of the transporter, for fault or presumed fault.
c) Simple values of recommendation are the Unidroit principles, these are principles that regulate international commercial contracts and which have as their objective the unification of the applicable law. These principles, if adopted by the parties, can overcome the difficulties inherent in the application of the law that regulates the contract or when the parties are in disagreement in the choice of the law itself. See 2010 draft principles or website https://www.unidroit.org/.
3) Limits on the freedom of choice of the parties: EU regulation 593/2008 (Rome I)
a) With the approval of the European Regulation (Rome I), which came into force on 17 December 17 2009, a more regular method was suggested as to how to deal with the problem of identifying the applicable law to the contract. (Please note that for the period prior to the date indicated above, the rules of the Rome Convention, issued in Italy with Law no. 975/1984 apply.)
This Regulation applies specifically to contractual obligations. Article 1 provides which matters are excluded (state and capacity of persons, matrimonial and succession regimes, food obligations etc). In such cases one should refer to other European regulations or directives, such as Rome 2 on non-contractual obligations.
b) In Article 3 of Rome I, the principle of freedom of choice of the parties is confirmed, either expressly or tacitly, i.e. resulting from the contractual provisions or the relative circumstances; part of the contract may be regulated by a specific applicable law, as long as this is in accordance with internal public order rules.
c) The constraints that arise from Rome I are present in the absence of choice of the parties in some cases, (Articles 4 – 8) and which has been discussed in caselaw, for example in relation to consumer rights, insurance, transport. These limits are imposed only in circumstances where strictly necessary, as defined in Article 9: “provisions in which respect is considered crucial by a country for the protection of its public interests, such as its political, social or economic organization, to the extent that it is required to apply it to all situations that fall within their application, whatever the law applicable to the contract under this Regulation. “
d) In such cases, therefore, the national judges and international judges can refer to the public order rules, both in domestic and foreign law, which is different from the law chosen by the parties.
In particular, two judgments on this point have specified the importance of the necessary enforcement rules.
The French Supreme Court’s ruling of 6 March 2010 has in fact examined a case of transportation of goods (beef) from France to Ghana.
This transport had been subject to an embargo under the laws of Ghana, but the French company had requested compensation for the loss of the goods and therefore for the resale to recuperate loss, since the embargo was an external element to the contract, this request would not affect its validity.
In this case the Supreme Court applied the Article 9 of the Rome 1 regulation and specified that the application should be rejected because it would have to consider the application of the Ghanaian law on the embargo and would also have to reference to the contract.
Similarly, the European Court of Justice, with the Nikiforidis ruling of 18 October 2016, applied the same rule as the regulation in question. In this the parties sought to determine the amount due as compensation for dismissal of a Greek employee by a Greek employer and a contract executed in Germany. The Greek State, the employer, wanted to apply the Greek law and not the German law, because in the first instance the amount would have been lower and in accordance with the decision held in the European Court of Justice, the law of the country should apply. In relation to the execution of the contract, Greek law was also considered, as the law applicable to the contract.
The reason is precisely the provision of Article 9 of the Rome I, which does not oppose taking into account the law applicable to the contract or other rules that have facts in the contract.
Paragraph 3 of Article 9 expressly declares that: “the provisions of the country in which the obligations deriving from the contract must be or have been carried out may also be effective, insofar as such necessary rules of application render the fulfillment of the contract illegal. In deciding whether these rules should be effective, their nature and purpose should be taken into account as well as the consequences of whether they are applied or not. “
4) In conclusion, through the necessary rules of application, also called lois de police, the law applicable to the contract is not easy to determine, even in the presence of specific choices available to the parties, as it allows the courts to consider further different rules that are based on factual elements of the contract, as happened in the two sentences analysed above.
Therefore it is always be necessary to take these aspects into consideration when drafting an international contract.
RIGHT TO CLAIM FOR ITALIAN CITIZENSHIP BY DESCENT VIA FEMALE LINE, WHERE CLAIMANTS MOTHER HAD AUTOMATICALLY LOST HER CITIZENSHIP ON MARRIAGE TO FOREIGN NATIONAL
Corte di Cassazione, judgment of 5 November 2015 n. 22608
An Italian citizen married her Egyptian citizen husband in 1950 and settled in Egypt. She became an Egyptian citizen automatically following her marriage. The Claimant, her son, applied to the Tribunale di Roma in relation to his application for Italian citizenship on the basis of iure sanguinis.
Whether the son of this Italian citizen would have the right to become an Italian citizen by descent, in the light of his mother having married an Egyptian national, given that she was considered by Italian law to have automatically renounced her Italian citizenship on marriage, even though she had not done so voluntarily.
Article 8 of the law dated 13 June 1912 n. 555 provides for the loss of Italian citizenship by a woman following acquisition of a foreign citizenship on marriage, even without making a voluntary decision to do so,
Article 10 (9) of the law dated 13 June 1912 n. 555 stated that a married woman could assume a different citizenship from that of her husband even if there is a personal separation between the spouses. If a foreign woman married an Italian citizen, on the other hand, then she acquired Italian citizenship. Ulitmately it was the man’s citizenship that determined the automatic citizenship of his wife and offspring.
The above articles have since been abrogated as ruled to be unconstitutional, ie contrary to the principle of equality of men and women in the 1948 Italian Constitution.
Article 17 of the law 5 February 1992 n. 91 deals with the process of identifying the status of the son of his Italian citizen mother who in theory was an Eyptian citizen at the point of his birth.
The Court held that in order to lose Italian citizenship, there must be a “spontaneous and voluntary renunciation” made by the citizen. This cannot be said to have taken place where under the terms of the 1912 law it was imposed on a woman that she would automatically acquire the citizenship of her husband. The Court ordered that there be an further investigation into the actual circumstances of her naturalisation.
DELAY BY CONSOLATO ITALIANO IN PROCESSING APPLICATION (AND RIGHT AS AN ALTERNATIVE TO APPLY TO THE COURTS IN ITALY EVEN THROUGH THE MALE LINE).
Ordinanza del Tribunale di Roma 18 April 2018
The Claimants were the grandchildren of an Italian citizen (BG) born in Italy in 1879, who had emigrated to Brazil, where he died without ever renouncing his Italian citizenship. His descendants made an application for Italian citizenship by descent at the Italian Consulate at Porto Alegre, Brazil in 2016, claiming that via ius sanguinis he passed his citizenship to his son, who passed the citizenship onto his children. There was an unbroken chain of Italian citizenship being passed through the male line.
In 2018 the Italian Consulate in Porta Alegre were still making decisions on applications from 2008! The Claimant had therefore petitioned the Rome Court in view of the delay.
- 2 della Legge n.241 del 7 agosto 1990 states that a decision needs to be made within a certain timeframe.
- 3. DPR n. 362/1994 states that a decision needs to be made within 730 days. The Ministero dell’Interno in this period needs to inform the applicants that they have been granted/refused Italian citizenship.
- The case was simple in which only the paternal line was needed to be considered and this should have been done within the required timeframe.
- The court ordered that a decision should be made and that the applicants should be granted citizenship
- Court orderered the Ministero dell’Interno to repay the cost of the case i.e. 4000 Euros, plus 259 Euros to be reimbursed to the applicants.
Corte di Cassazione, judgment of 17 January 2017 n. 969
A Tunisian national made an application for Italian citizenship on the basis of her marriage to an Italian national. Following submission of her application for Italian citizenship she had then separated from her spouse. This was however a personal/de facto separation and not a judicial one.
The First Tier Tribunal and the Court of Appeal both ruled stating that the Applicant was in possession of the required legal requisites for acquisition of Italian citizenship and had correctly applied ratione temporis (by reason of time) i.e. that the Applicant had remained married to an Italian citizen for 6 months following submission of the Italian citizenship application and there was no cancellation of the Applicant’s married status by way of annulment, judicial separation or divorce. The Ministero dell’Interno appealed against these rulings.
The Applicant had met the legal requirements for the grant of Italian citizenship of Article 5 of Law no. 91/1992 i.e. that she had resided in Italy as a spouse of an Italian national for a period of 2 years and in that period there was no annulment, separation or divorce from the Italian spouse.
The Court of Appeal held that the conditions set out in light of the changes introduced by Law no. 94/1999 had to be considered acquired, since in the six months after the marriage no cancellation, separation or divorce had occurred. The State cannot legally add a de fatto separation to this list.
The decision in discussion was judgement n. 6526 of 2005 of Consiglio di Stato (Council of State) which expressly established that the condition for obtaining citizenship is not only marriage but also the establishment of a true conjugal relationship.
Separazione di fatto (living apart but without legal separation) has no legal basis or significance in Italian citizenship law. The Court of Appeal decision was upheld by the Corte di Cassazione and the Applicant maintained her newly acquired Italian citizenship.
Disposizioni Anticipate di Trattamento – the right to choose
Following considerable public interest and pressure, the Italian government has now approved the proposed Law on Living Wills.
(See also article of 4 April 2017, “Living Wills in Italy- Il Testamento Biologico”, published by Jessica Zama).
Law n.219 of 22 December 2017 is now in force, and means that any individual in Italy, who is over 18 and has mental capacity, can now specify in advance, via a “Living Will” (called “Disposizioni Anticipate di Trattamento”, or “DAT”), what actions are to be taken on their health, in case they are no longer able to make those decisions themselves because of illness or incapacity. These choices include the consent or refusal with respect to medical treatments, and giving consent to their organs being donated.
An individual can also nominate someone to make these choices on their behalf (a “fiduciary”), and an alternate fiduciary in case that person cannot, or will not, make that decision.
The only requirements relating to the format of the DAT is that this must be in writing, and must be signed by the deponent, the fiduciary and the alternate fiduciary. It can be as simple or as complicated as the deponent wishes it to be (always with regard to the law- it is not possible to request any treatment that is against the law, or contrary to doctor’s code of ethics). The DAT can either be a public deed, prepared by a Notary, or a simple private document, prepared by that person (with the help of a lawyer, if they so wish).
The signed DAT must then be lodged with the local Comune, and will then be recorded in the relevant register, or it can be registered at the nearest hospital.
The DAT can be revoked by the deponent at any time. The fiduciaries can also, at any point after the DAT is registered, revoke their acceptance to act as such, with a written document which must also be lodged, and which must be notified to the deponent. The deponent can also revoke the chosen fiduciaries’ instructions, using the same method as above.
In the event that the person is unable to sign the DAT, he/she can express their wishes via a video recording, or similar device that allows for the communication of the wishes to occur.
Any doctor is, by law, obliged to follow the express wishes of the patient which have been set out in the DAT (again, as long as these wishes are not contrary to the law) and are, as such, exempted by any criminal or civil penalties in this regard.
DEFINITION OF “LAWFUL RESIDENCE”
Right to Italian citizenship at age 18 where born in Italy
Cassazione Civile Sent. Sez. 1 Num. 12380 del 17 May 2017
The Claimant (a minor) was born in Italy on 5 June 1991 to immigrant parents from Former Yugoslavia. The Claimant’s father had a permesso di soggiorno valid until 1999. The Claimant’s mother had requested permesso di soggiorno in 1992. A request to register the Claimant at the anagrafe was made on 14 September 1995, four years after the child was born.
There were various documents submitted in support of the Claimant’s application for Italian citizenship namely:
- Vaccination certificates of the Claimant covering the period 1991 to 2009.
- Claimant’s father’s ‘libretto di lavoro’ evidencing his work posts from 1990 to 2000.
- Declarations from the Social Services who were dealing with the family’s case
- Father’s INPS declarations, which showed that the Claimant was a part of her father’s ‘nucleo familiare’ and as such the Claimant’s father was receiving ‘assegni familiari’ until 7 September 1992 with a possibility for renewal prior to the deadline of 13 April 1991.
The documents submitted had been considered false.
On the Claimant’s birth certificate the parents’ residence was stated as being in Dardania. It was recorded that the family had claimed to have emigrated from Yugoslavia to Italy in January 1995, 4 years after the Claimant’s birth. The Court of Appeal did not comprehend why the father of the Claimant stated that the family had resided abroad for 4 years if this did not correspond with reality. It was further not understood why a correction had not been made prior to 1995.
In any event, the Court of Appeal was seen to have breached art.4 della legge n.91 del 1992 by not accepting the Claimant’s residence following the Claimant’s birth in accordance with the rules in the codice. The Court of Appeal did not apply the law but only took into consideration what had been stated on the Claimant’s birth certificate and further the parents would not have known what the requirements would have been for their daughter’s residence and further her application for citizenship in the future. The Court of Appeal should have carried out an examination which would have shown continuity of residence; i.e. from birth to the point of integration of the Claimant in Italy. This could have been done on the basis of documentary evidence provided. No just weight was given to the documents submitted.
- The Claimant should have been residence from her birth, i.e. from 1991 not from 1995 when her parents had registered her residence.
- Art 4. Della legge n.91 del 1992 states: ‘A foreigner who was born in Italy, and has legally resided in Italy without interruptions to the point of reaching 18 years becomes an Italian citizen if they declare their intention of obtaining Italian citizenship within one year after reaching adulthood’.
- This will only apply if the foreigner has resided legally in Italy, has never entered Italy clandestinely and has always had some for of permesso di soggiorno.
- Article 43 of the Codice Civile states that residence is where you are habitually resident.
- Art 138 of the Codice di Rito states that your residence is where it has been registered in an anagrafe
- Circolare n.22 del 2007 by the Ministero dell’Interno states ‘ratione temporis applicabile’, in the event that the parents of a minor register their residence with a delay, this cannot cause prejudice to the minor’s application for residence later on when in fact their residence has taken place.
- 4 comma 2 della legge 5 febbraio 1992 n.91 states that an Applicant should not face any impediments caused by their parents or by officers of public administrative offices as they can support their application with required documentation. Further, officers of the Stato Civile are required following a potential Applicant’s eighteenth birthday to advise them that they can make an application for Italian citizenship on the basis of the said law following completion of their nineteenth year.
- The matter was resent to the Court of Appeal for reconsideration of the application on the basis of the failure of just consideration of documents submitted.
This challenging piece of legislation is going to set the standards for privacy law in the world for years to come, since revelations about the use of Facebook have shown very recently how data breaches and fraudulent use of data can even manipulate the modern political process. We take this new law very seriously and we have carefully reviewed how we as lawyers can improve the guarantees we offer our clients of a very high standard of privacy and confidentiality.
The sad fate of 23 month old Italian citizen Alfie Evans who never managed to arrive in Italy.
Alfie Evans was granted Italian citizenship on 24 April 2018 on the basis of Article 9(2) Act No. 91 of 5 February 1992, which states that:
‘By decree of the President of the Republic, having heard the Council of State and following a decision by the Council of Ministers, upon a proposal of the Minister for the Interior, in consultation with the Ministry for Foreign Affairs, citizenship may be granted to aliens where they have rendered an outstanding service to Italy, or where an exceptional interest of the State exists’.
It was determined that Alfie’s case was of interest to the Italian State in order to ensure further therapeutic developments for the minor, in the protection of pre-eminent humanitarian values which, in this case, concern the safeguarding of health.
Pope Francis was also involved in Alfie’s fate following Alfie’s father, Tom Evans travelling to Rome and asking for his son to be granted asylum in order for Alfie to receive treatment at the Bambino Gesù Pediatric Hospital. The Pope said that the Vatican’s Secretariat of State would ensure a “decisive diplomatic channel is open up for Alife so that the dignity of his life is respected”. Shortly after, Foreign Minister Angelino Alfano and Interior Minister Marco Minniti granted Italian citizenship to Alfie on 24 April 2018 and hoped that by doing so, the child would immediately be able to be transferred to Italy. The Italian government applied to the UK Foreign Secretary for permission to intervene to save Alfie’s life. The court banned Alfie to travel. The Italian government was asked to intervene in the case in order for their citizen Alfie Evans to be returned Rome.
The Alder Hey Children’s Hospital in Liverpool, where the child was being nursed recommended to Alfie’s parents that treatment be stopped as the damage was too extensive. Alfie’s matter was taken to the Family Division of the UK High Court and was dismissed. The case was then referred to the Supreme Court and was dismissed yet again.
Despite, the Italian government’s initial offer for Alfie to be transported to Rome’s Bambino Gesù Pediatric Hospital, the Roman doctors later changed their minds after consulting with Alfie’s doctors in the UK stating that the condition was irreversible and untreatable. Mr Justice Hayden consequently rejected the notation to take Alfie to Rome and ordered to end Alfie’s life support should commence at 21.00 on 30 April 2018.
Mr Justice Hayden was scolded by many for referring to the urgent plight of Kate James and Tom Evans to keep their son alive as ‘deluded’ and ‘emotive nonsense’. The Guardian stated that: ‘the outpouring of what he called ‘emotive nonsense’ in his courtroom is not to be confused with heartlessness. Rather it is a recognition that court are the one place where, in cases like these, reason can still prevail over white-hot emotion’. Hayden ordered that the child’s ventilator be switched off as keeping the child alive was no longer in the child’s best interests. Following Hayden’s determination, Alfie’s parents made a desperate appeal to the European Court of Human Rights, which rejected the application deeming it to be inadmissible.
Alfie sadly died at 02.30am on 28 April 2018. It will always remain an unknown whether Alfie would have received better care and have lived longer as an Italian citizen had he been allowed to be treated in the Bambino Gesù Pediatric Hospital in Rome.