The successions regulation connects 25 of the 28 Member States (Denmark, Ireland and the United Kingdom chose not to join) and has been in force in Belgium since 17 August 2015.
However, the fact that the succession involves a deceased of British nationality, or a deceased (regardless of their nationality) residing in one of these three Member States not linked by the regulation, has no impact on the binding nature of this regulation in Belgian law: Belgian courts can exercise their jurisdiction over these cases.
Pursuant to article 4, “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”.
With regard to determining the deceased’s habitual residence, the competent authority “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 deceased’s presence in the State concerned and the conditions and reasons for that presence”.
The habitual residence chosen “should reveal a close and stable connection with the State concerned”. In particularly complex cases, in particular in the presence of more than one potential habitual residence, “the deceased could, depending on the circumstances of the case, be considered still to have his habitual residence in his State of origin in which the centre of interests of his family and his social life was located.”
The inheritance regulation aims to solve most of the questions that private international law poses to international succession: opening and return of the succession, liquidation and sharing of the estate.
The courts of the Member State where the deceased had their habitual residence at the time of death are indeed competent to rule on the return of all assets of the estate, including movable and immovable property, and regardless of whether they are located in the Member or Non-Member State of the deceased’s last habitual residence.
The return of an entire succession is therefore centralised with the Member State courts of the deceased’s last habitual residence, which reduces the likelihood that heirs will resort to forum shopping within the European Union.
However, article 12 of the succession regulation allows a jurisdiction competent to return a succession to refuse to rule on the succession by invoking any reason, even if not mentioned, that would lead to a risk that its judgment would not be recognised or executed by a relevant Non-Member State. Thus, this provision restricts the scope of proceedings sought by this regulation, leading to a potential division of the succession and overrides the principle of unity of the succession.
Article 10 of the regulation provides that:
This provision covers cases in which the general rule of competency does not allow the jurisdiction of a Member State to be domiciled due to the establishment of the deceased’s habitual residence on the territory of the State not party to the regulation even though this succession has a direct link to a Member State. Article 10 also contains subsidiary jurisdiction rules that determine the competence of the Member State’s courts over the territory where the assets of the estate are located.
Article 10 establishes the subsidiary jurisdiction of the Member State where the assets of the estate are located provided that the deceased was a national of that State at the time of death.
Pursuant to article 11 of the inheritance regulation, “Where no court of a Member State has jurisdiction pursuant to other provisions of this Regulation, the courts of a Member State may, on an exceptional basis, rule on the succession if proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the case is closely connected. The case must have a sufficient connection with the Member State of the court seised”.
This article covers cases in which it is impossible or unreasonable to file an action before the courts of a Non-Member State due to exceptional circumstances such as civil war, natural disasters or political persecution. Application of article 11 requires that the case is sufficiently linked to the Member State of the court seised.
The regulation should not apply to inheritance tax, in particular cross-border inheritances.
The regulation also does not apply to marital property regimes between the deceased and their spouse or partner: therefore, the regulation cannot be used to establish the applicable law for liquidation of the marital property between the deceased and their spouse/partner.
This issue is left to the private international law of the Member States. Thus France, the Netherlands and Luxembourg are linked by the provisions of the 1978 Hague Convention, whereas other Member States have mainly adopted the conflict rules of specific marital property regime laws, which can be very different from one Member State to another.
