The writer was, recently, fortunate enough to have had the opportunity to present a webinar on the European Succession Regulation 650/2012 (ESR). One distinct characteristic of the ESR is a lack of caselaw from which to draw safe conclusions as to the actual application of the ESR. In particular in relation to jurisdiction and the law applicable to the succession.
The applicable rules
As to the matter of jurisdiction, according to article 4 of the ESR 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.
In relation, to the law applicable to the succession as a whole, according to the general rule found in article 21 of the ESR, this shall be the law of the State in which the deceased had his habitual residence at the time of death.
In this brief article, in spite of the absence of relevant caselaw, a couple of examples will be given which will hopefully bring the ESR to life.
Let us take as our first example, a married couple, A and B who are both of French nationality and have invested their life savings to purchase a villa in Cyprus and after their early retirement have actually lived in Cyprus for the past 20 years relying on their pension as a source of income as well as running a small wine import and export company. The husband passes away without a will. Apart from Cyprus, part of his estate, both in the sense of personal and real property, is located in France.
The applicable law in this case will be the law of Cyprus since clearly on the basis of the circumstances of the life of the deceased prior to his demise Cyprus is the state in which the deceased had his habitual residence at the time of his death. Also, on the same basis and the application of the rule as to general jurisdiction, unless any other provision becomes applicable, in case a dispute arises about the international succession to his estate, the case will be heard in Cyprus.
Let us now take another example, that of C, an elderly widow, of Finnish nationality who after her husband's death in Finland rents a furnished seaside apartment in Cyprus with an annually renewable rental agreement. Apart from regular visits back to Finland twice a year, for a month at a time, during the Christmas and Easter holidays, so as to spend time with her children and grandchildren, C spends most of the year in Cyprus preferring the weather here. She is very attached to her family and friends in Finland and keeps in touch with them daily through the internet.
Apart from a bank account in Cyprus for her day to day expenses, her entire property, in the form of both her family home and movable property, is all situated in Finland. Also, her entire family and friends are all permanent residents of Finland. Her stated intention to her landlord is that she would like to keep renting the apartment where she is staying for so long as the state of her health permits her to look after herself. After five years of staying in Cyprus for most of the year she dies.
In this case, even though C spent most of her time during this five year period in Cyprus, it is clear from all the surrounding circumstances that at the time of C's death in Cyprus she was manifestly more closely connected with Finland than with Cyprus. Therefore, by way of exception, the applicable law in C's case is that of Finland and, on the same basis, in case a dispute arises about the international succession to her estate, the case will be heard in Finland.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.