eunbil · GZ0N2A0D23 · 2011-12-06 00:00:00 — It will be indicated in a recital that under the future Regulation all notaries or other legal professionals and authorities who currently have competence in matters of succession in the Member States will be able to continue to exercise such competence. Whether or not the notaries or other legal professionals and authorities in a given will be bound by the rules of jurisdiction set out in the future Regulation will depend on whether or not they fall within the definition of "court" for the purposes of the Regulation. All acts issued by notaries in all Member States will circulate under the future Regulation either, for acts issued by notaries or other legal professionals and authorities bound by the rules of jurisdiction, in accordance with the provisions on recognition and enforcement of decisions or, for acts issued by notaries not bound by the rules of jurisdiction, in accordance with the provisions on authentic instruments. A recital will be inserted explaining which authorities will be covered by the term "court" under the future Regulation, that is, courts in the true sense of the word, the notaries or registry offices in certain Member States who or which, in matters of succession, exercise judicial functions like courts and the notaries and legal professionals who, in some Member States, exercise judicial functions in a given succession by delegation of power by a court. That recital will also explain that the term "court" does not include non-judicial authorities of a empowered under national law to deal with matters of succession, such as the notaries in most Member States who do not exercise judicial functions. Two recitals will be inserted providing guidance on the determination of the habitual of the deceased at the time of death, one spelling out certain factual elements to be taken into account and one listing certain complex cases. These recitals will be worded along the following lines: "This Regulation provides that the general connecting factor for the purposes of determining both jurisdiction and the applicable law is the habitual of the deceased at the time of death. In order to determine the habitual , the authority dealing with the succession should make an overall assessment of the circumstances of the life of the deceased during the years preceding his death and at the time of his death, taking account of all relevant factual elements, in particular the duration and regularity of the deceaseds presence in the State concerned and the conditions and reasons for that presence. The habitual determined should reveal a close and stable connection with the State concerned taking into account the specific aims of this Regulation." "In certain cases, determining the deceaseds habitual may prove complex. Such a case might arise, in particular, where the deceased for professional or economic reasons had gone to live abroad to work there, sometimes for a long time, but had maintained a close and stable connection with his State of origin. In such a case, the deceased might, depending on the circumstances of the case, be considered still to have his habitual in his State of origin. Other complex cases might arise where the deceased lived in several States alternately or travelled from one State to another without settling permanently in any of them. If the deceased was a national of one of those States or had all his main assets in one of those States, the nationality or the location of the assets might be a special factor in the overall assessment of all the factual circumstances." It will be indicated in a recital that the terms "the succession as a whole" covers all property forming part of the succession, wherever the assets are located. It will be indicated in a recital what is to be understood by the "parties concerned" for the purposes of this provision. It will be indicated in a recital that the courts of the of the habitual of the person making the declaration will not have jurisdiction to receive declarations designed to limit the liability of the person concerned in respect of the liabilities of the estate when the law applicable to the succession requires a specific procedure to that end before the court or authority dealing with the succession. It will be indicated in a recital that it will be for the persons making the declarations themselves to inform the court or authority dealing with the succession of the existence of such declarations within any time limit set by the law applicable to the succession. A recital will be inserted which will indicate that the factual or legal situations created as a means to modify fraudulently the connecting factor for the purposes of determining the jurisdiction of the courts and/or the law applicable under the future Regulation are to be disregarded when the jurisdiction and/or the applicable law is determined. In addition, the fraudulent creation of an international element to circumvent the rules on the formal validity of dispositions of property upon death may equally be disregarded. On the terms "the succession as a whole", see the footnote to Article 4. On the determination of habitual , see the recitals suggested in the footnote to Article 4. Two recitals will be inserted to explain the exceptional nature of this escape and provide guidance on its application. Those recitals will be worded along the following lines: "In exceptional cases when, for instance, the deceased had moved to the State of his habitual fairly recently before his death and all the circumstances of the case indicate that he was manifestly more closely connected with another State, the authority dealing with the succession may arrive at the conclusion that the law applicable to the succession should not be the law of the State of the habitual of the deceased but rather the law of the State with which the deceased was manifestly more closely connected." "The manifestly closest connection should not be resorted to as a subsidiary connecting factor whenever the determination of the habitual of the deceased at the time of death proves complex." A recital will be inserted to explain by way of examples how an implicit choice may be "clearly demonstrated" by the terms of a disposition of property upon death so as to obviate, as far as possible, disputes as to whether the deceased had or had not chosen a law in his disposition of property upon death. One example might be the situation in which the deceased referred expressly in his disposition to articles of the law of the State of his nationality or otherwise explicitly mentioned that law. It will be explained in a recital that the right of a person to choose the law to govern his succession is established by the Regulation and that a choice of law will be valid even if the chosen law does not provide for a choice of law in matters of succession. In this context, the chosen law only determines whether the person making the choice may be considered to have understood and consented to what he was doing when making the choice. On the terms "the succession as a whole", see the footnote to Article 4. It will be indicated in a recital that the law determined as the law applicable to the succession governs the succession from the opening of the succession to the transfer of ownership to the assets forming part of the estate to the beneficiaries. It will be indicated in a recital (for the purposes of the entire Regulation) that no general definition can be given of the term "beneficiaries" given that it will be for the law applicable to the succession to determine in each case who the beneficiaries are. The term will under most laws cover heirs and legatees and persons entitled to a reserved share although the legal position of legatees is not the same under all laws. Under some laws, a specific asset out of the succession is transferred to the legatee directly by operation of law or the legatee receives a direct share in the succession. Under other laws, the legatee acquires only a claim against the heirs. It will be indicated in a recital that the law governing the admissibility and substantive validity of a disposition of property upon death under the future Regulation will not prejudice the rights of any person who, under the law applicable to the succession, has a right to a reserved share or another right of which he cannot be deprived by the person whose estate is involved.. It will be indicated in a recital that the examination of the substantive validity of a disposition of property upon death on the basis of the elements listed in the Regulation as pertaining to substantive validity may lead to the conclusion that the disposition of property upon death is without legal existence. It will be indicated in a recital that the law which would have been applicable to the succession of the person making the disposition if he had died on the day on which the disposition was respectively made or modified or revoked would be either the law of the State of his habitual on that day or, if he had made a choice of law under Article 17, the law of the State of his nationality on that day. It will be indicated in a recital that this provision does not subject the capacity of a minor to make a certain disposition of property upon death to the law governing the form. It only concerns the rules as regards the form which are linked to a personal qualification which may be that of minority. See the recital suggested in footnote 1 to Article 8. It will be explained in a recital that all creditors will be covered by this provision, irrespective of whether they are local creditors or foreign creditors. It will be indicated in a recital that the protective measures in question are measures which are intended either to preserve the assets located in the concerned or to ensure adequate security so as to safeguard the interests of the creditors until their claims are satisfied by those who are liable for the debts of the deceased or of the estate under the law applicable to the succession. It will be explained in a recital that this exception to the application of the law applicable to the succession is to be given a strict interpretation. Neither conflict of laws rules subjecting immovable property to a law different from that applicable to movable property nor the provisions providing for a reserved share of the estate greater than that provided for in the law applicable to the succession under Articles 16 or 17 may be considered as special rules setting restrictions concerning or affecting the succession in respect of certain assets. A recital will be inserted to provide guidance on how to proceed in the case of adaptation (elaborating on the guidance which, to a certain extent, is already provided in the last part of the suggested new provision). If necessary for the purposes of determining the closest equivalent national right in rem, the authorities or competent persons of the State whose law applied to the succession may be contacted to obtain further information on the nature and the effects of the right. In this context, the existing networks in the area of judicial cooperation in civil and commercial matters should be used as well as any other available means facilitating the understanding of foreign law. It will be indicated in a recital that this Chapter covers all decisions given by a court as defined in Article 2(2) in proceedings, be they contentious or non-contentious. Not all provisions are relevant in all situations, some will by definition only apply in situations where the succession was disputed in the of origin. A recital will be inserted providing guidance to the authorities if they were to be presented with irreconcilable acts. A recital will be inserted to explain the concept of "evidentiary effects". It will indicate that the determination of the evidentiary effects of a given authentic instrument in another or of the most comparable effects should be made by reference to the nature and the scope of the evidentiary effects of the authentic instrument in the of origin. It will therefore depend on the law of the of origin which evidentiary effects a given authentic instrument will have in another . A recital will be inserted to explain that the "authenticity" of an authentic instrument is an autonomous concept which covers elements such as the genuineness of the instrument, the formal prerequisites of the instrument, the powers of the notary and the procedure under which the notary draws up the instrument. It also covers the factual elements recorded in the authentic instrument by the authority, such as the fact that parties X and Y have appeared before the authority on date Z and that they have made the declarations indicated. A recital will be inserted to explain that the terms "the legal acts or legal relationships recorded in an authentic instrument" should be interpreted as a reference to the contents as to substance recorded in the authentic instrument. The legal acts recorded in an authentic instrument could be for instance the agreement between the parties on the sharing-out or distribution of the estate, a will or an agreement as to succession, or another declaration of intent. The legal relationships could be for instance the determination of heirs and other beneficiaries as established under the law applicable to the succession, their respective shares and the existence of a reserved share, or any other element established under the law applicable to the succession. It will be explained in a recital that an authentic instrument which, as a result of a challenge, is declared invalid will cease to produce any evidentiary effect. A recital will be inserted to clarify the meaning of this provision. Such a recital would spell out that the persons entitled to apply for a Certificate under Article 36a(1) are under no obligation to do so, but are free to use the other instruments available under this Regulation (decisions, authentic instruments and court settlements). It will also specify that no authority or person before which or whom a Certificate issued in another was produced could request that a decision, authentic instrument or court settlement be produced instead of the Certificate. It will be indicated in a recital that it will be for the Member States to determine in their internal legislation which authorities will have competence to issue the Certificate whether courts as defined for the purposes of this Regulation or other authorities with competence in matters of succession, such as for instance notaries. The Member States will have to provide the relevant information concerning their issuing authorities in accordance with Article 46a. A recital will be inserted spelling out that the Certificate will not be an enforceable title in its own right but will have evidentiary value. A recital will be inserted to explain paragraphs 3 and 4. That recital will be worded along the lines of paragraph 36 of document 11067/11 JUSTCIV 152 CODEC 968 which reads as follows: "person who, in good faith, acts on the basis of the information certified in the Certificate will be deemed to be released from his obligations. Similar third party protection will be granted to a person who, in good faith, acquires property from a person designated in the Certificate as being authorised to dispose of such property, without prejudice to the effects of the recording which will be excluded from the scope of the future Regulation (see part A, point (iii))." It will be indicated in a recital that the provisions on the issue of certified copies of the Certificate should not preclude that a , in accordance with its national rules on public access to documents, may allow copies of the Certificate to be disclosed to members of the public. It will be a precondition for the insertion of this provision giving precedence to the Nordic Convention that the Intergovernmental agreement revising the Convention is signed before the date of adoption of the Regulation. OJ L 160, 30.6.2000, p. 9 months before the date of application of the Regulation. 10 years after the date of application of the Regulation. 36 months after the date of entry into force of the Regulation. 9 months before the date of application of the Regulation. The day following the date of adoption of the Regulation. 17715/11 ADD 1 REV 1 BS/abs DG H 2A LIMITEEN