Choice of court agreement pursuant to Article 5 EU Succession Regulation
von Timo Seeburger
REGULATION (EU) Nr. 650/2012
Since 17 August 2015, the Regulation has harmonized the conflict of laws of the Member States, i.e. it determines the applicable law in cross-border succession cases throughout Europe. The Regulation follows the principle of unity of succession, i.e. all assets belonging to the estate are subject to the same law (see Consideration 37 p. 4 EU Succession Regulation). This also applies if the entire estate is not located in one country.
ARTICLE 22 – Choice of law
According to Article 22 of the EU Succession Regulation, the testator has the option of making an expressed or implied choice of law in his/her last will and testament, i.e. deciding which law should apply to the settlement of the succession.
ARTICLE 5 – Choice-of-court agreement
The parties concerned may agree that a court or the courts of a Member State are to have exclusive jurisdiction to rule on any succession matter. Such a choice-of-court agreement shall be expressed in writing, dated and signed.
ARTICLE 4 – General jurisdiction
The courts of the Member State in which the deceased had his habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole.
EXAMPLE - Facts of the case
The testator had his habitual residence in Spain at the time of his death. He stated in his will: "I am a German citizen and have my place of residence in Spain. I expressly declare that my dispositions in this will are based on German law and that German law shall apply to my estate settlement."
The parties concerned are an heir in Germany and a legatee in Spain.
PROBLEM - Competent court
The question now is which court has jurisdiction to issue the European certificate of inheritance/a certificate of succession (Erbschein). The testator has not expressly specified this; he has merely specified that German law should apply. According to Article 4, the Spanish courts would have jurisdiction over the estate and would have to rule according to German law. However, the court in Spain could, at the application of one of the parties, declare that it has no jurisdiction pursuant to Article 6 of the EU Succession Regulation (declining jurisdiction in the event of a choice of law) if, in the opinion of the court seised, the courts of the Member State of the chosen law would be better placed to rule on the succession.
SOLUTION - consensual jurisdiction agreement
The parties concerned agree, in writing and dated: "Pursuant to Article 5 of the EU Succession Regulation, we agree that the German court, Hamburg Local Court, inheritance court, shall have exclusive jurisdiction for decisions relating to inheritance matters in the matter XY.
CONCLUSION – Cooperation
In inheritance matters with an international connection, it is advisable to prepare the application for a European Certificate of Succession (or Erbschein) thoroughly. If the parties involved work together, they can save themselves many months of bureaucracy.
Jurisdictional issues can considerably delay the settlement of the estate.
- Choice-of-court agreement
- cross-border Succession
- EU Succession Regulation
- European Certificate of Succession
- Harmonization of inheritance law
- Inheritance law
- unification of law