The EU in 2014: the Home Programme

Thursday, 01 May 2014
Richard Frimston considers the EU Succession Regulation and choice of law.

Old codgers like me remember the BBC as having a UK Home Service and a World Service, before a Light Programme and then a Third Programme were introduced. The UK Home Programme eventually morphed into Radio 4.

Regulation (EU) No.650/2012 (the EU Succession Regulation) comes fully into effect on 17 August 2015. The relevant jurisdiction and applicable law are governed by habitual residence at death. However, under article 22, the law of the deceased’s nationality is the applicable law if chosen either explicitly or implicitly in a will or succession agreement.

Many existing wills may clearly demonstrate a reference to specific provisions of the law of nationality and, therefore, an implicit choice of that law. The effect of such a choice may be far-reaching. Establishing the existence of such a will, therefore, becomes even more important.

When the EU Succession Regulation comes fully into effect in 2015, pressure for an EU-wide system of will registration and search will grow

The establishment of national systems for will registration and communication of information was encouraged by the Council of Europe under the Basel Convention of 16 May 1972 on the Establishment of a Scheme of Registration of Wills (the Convention). The Convention is in force in Belgium, Cyprus, Estonia, France, Italy, Lithuania, Luxembourg, the Netherlands, Portugal, Spain, Turkey and the Ukraine.

The Convention, although signed and effected by sections 23–25 Administration of Justice Act 1982, has never been brought into force in the UK. Germany and Denmark have also signed, but not yet ratified, the Convention.

The Association du Réseau Européen des Registres Testamentaires (ARERT) (the European Network of Registers of Wills Association) has been building gradually and now provides links to the registers in Belgium, Bulgaria, Estonia, France, Hungary, Lithuania, Luxembourg, the Netherlands, Poland and Romania. Austria, Italy, Portugal and Slovenia are also members of ARERT. The links vary from full connectivity to electronic request. The Czech Republic, Denmark, Finland, Germany, Greece, Ireland, Slovakia, Sweden and the UK are the current blank areas.

The ARERT website provides very useful details about registration and searching will registers throughout the EU.1

I was very pleased to be able to represent STEP at a seminar held by ARERT in Paris on 14 February 2014 and discuss some of the practical issues involved in tracing and obtaining a copy of a will in different member states of the EU.

When the EU Succession Regulation comes fully into effect in 2015, pressure for an EU-wide system of will registration and search will grow. It is very likely that some recognition of the existing ARERT and ARERT LITE models will become the norm. The registers will become the place where other facts relevant to succession can also be registered: matrimonial property regimes, conditional gifts and inheritance contracts. In advance of the finalisation of the EU Regulation on Matrimonial Property Regimes, Belgium has started the ball rolling by including choices of matrimonial property regimes on its register.

The traditions of the civil law mean that, in practice, it has been the European notarial professions that have developed the registers in response to the needs of their clients. The costs of registration vary but have generally fallen. The cost of registration in Belgium is currently EUR25, while in France it is EUR8.95 and in the Netherlands EUR9. Enquiries are usually free. In Spain, registration is free via notaries, but enquiries cost EUR3.47.

Between 22 and 25 May 2014, 751 new members of the European Parliament are to be elected by those of the 500 million citizens of the current 28 member states who actually turn out to vote. For the first time, the European Parliament will then choose the EU Commission President.

Since 1999, there have been a number of five-year plans for justice and home affairs in the member states of the EU. The first was the Tampere Programme of 1999, the second the Hague Programme of 2004, and the third the Stockholm Programme of 2009. We do not yet know the EU place that will provide the name of the fourth programme to be published this year. I am rooting for the Reith bei Kitzbühel Programme. Whatever the name, the issue of the registration and searching for wills is very likely to feature.

As STEP members, we need to be able to work together in the EU to take our full part and find ways to provide our clients with the options they need. That will be the cat’s whiskers.

Author block
Richard Frimston

Richard Frimston TEP is a Partner and Head of the Private Client team at Russell-Cooke LLP, and Chair of the STEP EU Committee.

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