Inheritance law and the European Union: the impact of ‘authentic instruments’

This blog post is by Dr. Jonathan Fitchen.

Aunt Jemima died last week. She was 102. She lived in Belgium and was so very fond of you – now her only surviving relative – that you went to stay with her on many happy family holidays. Jemima always promised that you would be left her money and property by her Belgian will. You heard of Jemima’s death from her neighbour, Jacques, who you phoned to find out why Jemima was not answering her phone. When you travel to Belgium to Jemima’s funeral you also learn from Jacques that as well as her Belgian will, Jemima entered into various other arrangements via a type of document called an authentic instrument. There are three authentic instruments, one each from Bulgaria, Italy and Spain. You don’t know what an authentic instrument is, and nor do you know if such things can affect your entitlement to Aunt Jemima’s money and property under the Belgian will.

An expert team from the Law School of the University of Aberdeen (consisting of Professor Paul Beaumont, Dr. Jonathan Fitchen and Ms Jayne Holliday) has worked for the European Parliament to address some of these questions by producing a comparative survey of the law concerning a special type of legal document called an ‘authentic instrument’ that is used in 22 of the 28 EU Member States in matters concerning wills and succession (‘succession’ being the word lawyers tend to use for ‘inheritance’). (The six Member States that do not are the UK, Ireland, Denmark, Sweden, Finland and Cyprus.) The matter has become more important because of a law called the European Succession Regulation (Regulation 650/2012).

Authentic instruments are formal documents created by public officials, such as notaries, from some civil law legal systems. They provide strong evidence of any officially verified facts that they contain.

The Succession Regulation applies directly in every EU Member State (except in the UK, Ireland and Denmark – but it can still affect their citizens in situations such as that in the example above). It determines issues such as: what the testator can do in a will to choose a law for the will before his death; or what law and procedures apply after his death if his estate is spread across different legal systems.

The Succession Regulation was created to deal with the problems of uncertainty arising from very different laws of succession across the legal systems of the EU. The worry was that the estate of an EU citizen from one EU Member State who then lived and worked in (or retired to) another EU Member State might be very much complicated by a patchwork quilt of different succession laws that could ALL be applicable to this single estate. The legal complexity would entail delays and extra costs many of which would be paid by the estate.

An important provision of the new Regulation is Article 59. Article 59 obliges the authorities in one Member State to accept an authentic instrument from another EU Member State by giving that document the same or very similar evidence effects to those that it would produce in the Member State from which it originated. To comply with Article 59 it is necessary to know what the evidentiary effects of authentic instruments in each of the 22 EU Member States that allow their creation are. This is what our Study does (PDF). We have explained what the domestic evidence effects of authentic instrument are in matters of succession so that lawyers and courts in other countries can properly comply with Article 59 of the Succession Regulation.

What does this mean for your entitlement to Aunt Jemima’s money and property? Well, if the authentic instruments from Bulgaria, Italy and Spain fall within Article 59 of the Succession Regulation they will (in nearly all imaginable circumstances) produce the same evidential effects in Belgium (or any of the other relevant EU Member States) as they produced domestically (with these points being covered in our Study): you may not get all of Aunt Jemima’s money after all!

Further details of this (and other) work undertaken by the Centre for Private International Law can be found here. An earlier blog post by Jayne Holliday looking at another aspect of Private International Law’s relationship with the EU is available here.

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