The EU Regulation on cross-border inheritance and succession no. 650/2012 came into force in August 2015, so not surprisingly only now its provisions are starting to be interpreted by the European Court of Justice.
Lawyers who deal with cross-border estates, such as a succession involving assets in more than one country including an EU member state are keen to see how some controversial or ambiguous clauses are going to be defined, for example in the definition of habitual residence – how it will be clear in the case of a person who works or lives or has asets or business interests in more than one country where is the actual place of their habitual or ordinary residence? Does it conflict with the law of their domicile? This is an issue which we often have to consider in our pratice where we advise both Italian and international clients. Habitual residence is now a key factor in determining when a person dies, where there is a cross border element to their succession, which law will apply to all the questions of their inheritance. Even though it is used in other Regulations, for example the Regulation 2201/2003 on jurisdiction and in divorce matters.
The first judgement to be handed down by the court on the 2012 Succession Regulation comes from a reference to the ECJ from a Polish court. Case no C-218/16. Here is a link to the case:
This case concerned not the estate of a deceased person, but the right of a Polish testator (resident in Germany with her German national husband where they jointky owned property) to make a will in Germany in accordance with Polish law making a type of legacy of the German property. A notary’s assistant refused to draw up a will containing a legacy ‘by vindication’ on the grounds that creation of a will containing such a legacy was contrary to German legislation and case-law relating to rights in rem and land registration.
The ECJ held that the German Notary’s office could not refuse to make this will, and could not rely on the exception in the Regulation which excludes the application of “rights in rem”. So the court upheld the freedom of the testator to be able to apply her national law, which is welcomed as in the spirit of which the Succession Regulation was drafted.