The proposed EU regulation on succession and wills : viable or still born?

Abstract

The growing significance of cross border successions within the European Union and the difficulties and complications resulting from the diversity of succession and private international law rules relating to succession, prompted the European Commission to examine the possibility of introducing a regulation that would facilitate and streamline cross border successions. The efforts of the European Commission culminated in October 2009 with the presentation of a proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession. The regulation provides for a single connecting factor that will determine applicable law and jurisdiction. Furthermore, it provides for the creation of a European Certificate of Succession, which should be recognizable throughout the European Union. This dissertation analyses the wisdom of the choice of habitual residence as the connecting factor as well as the failure of the European legislator to provide a definition of habitual residence, which is the foundation upon which the proper application of the regulation is built. This dissertation questions the feasibility of the European Certificate of Succession. The essential question asked is whether the regulation as presently drafted provides an improvement amelioration on the present system of private international law rules applied by the different Member States, substantial enough to convince the Member States to abandon the status quo in favour of the new regime.