REGULATION (EU) No 650/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 4 July 2012

on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession

COUNCIL REGULATION (EU) 2016/1103

of 24 June 2016

implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and nforcement of decisions in matters of matrimonial property regimes

Article 1

Scope

Succession mortis causa

Article 1

Scope

Property regimes

Art. 1 n. 2 D)

Excluded items (apparently connected with successions) ;

“d) questions relating to matrimonial property regimes and property regimes of relationships deemed by the law applicable to such relationships to have comparable effects to marriage”

Art. 1 n. 2 D)

Excluded items:

“d) the succession to the estate of a deceased spouse ”

Article 3

Definitions

Article 3

Definitions

CHAPTER III

APPLICABLE LAW

Article 20

Universal application

CHAPTER III

APPLICABLE LAW

Article 20

Universal application

Article 21

General rule

1. Unless otherwise provided for in this Regulation, the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death.

2. Where, by way of exception, it is clear from all the circumstances of the case that, at the time of death, the deceased was manifestly more closely connected with a State other than the State whose law would be applicable under paragraph 1, the law applicable to the succession shall be the law of that other State.

Article 21

Unity of the applicable law

The law applicable to a matrimonial property regime pursuant to Article 22 or 26 shall apply to all assets falling under that regime, regardless of where the assets are located.

Article 23

The scope of the applicable law

1. The law determined pursuant to Article 21 or Article 22 shall govern the succession as a whole.

2. That law shall govern in particular:

(a)

the causes, time and place of the opening of the succession;

(b)

the determination of the beneficiaries, of their respective shares and of the obligations which may be imposed on them by the deceased, and the determination of other succession rights, including the succession rights of the surviving spouse or partner;

CHAPTER VI

EUROPEAN CERTIFICATE OF SUCCESSION

Article 62

Article 63

Purpose of the Certificate

1. The Certificate is for use by heirs, legatees having direct rights in the succession and executors of wills or administrators of the estate who, in another Member State, need to invoke their status or to exercise respectively their rights as heirs or legatees and/or their powers as executors of wills or administrators of the estate.

2. The Certificate may be used, in particular, to demonstrate one or more of the following:

(a)

the status and/or the rights of each heir or, as the case may be, each legatee mentioned in the Certificate and their respective shares of the estate;

(b)

the attribution of a specific asset or specific assets forming part of the estate to the heir(s) or, as the case may be, the legatee(s) mentioned in the Certificate;

Article 65

Application for a Certificate

- Optional model

- There is no reference in the law governing it to the property regime

- In the approved model, however, it is necessary to indicate whether the deceased had a spouse or partner and in this case use additional information such as:

* if the spouse / partner and the deceased have specified which law should govern the matrimonial property regime or the property effects of the registered partnership (choice of law)?

* If known, the data relating to the matrimonial property regime or other equivalent property regime of the deceased (in particular, specify whether the property regime has been dissolved and the assets divided)

Article 68

Contents of the Certificate

The Certificate shall contain the following information, to the extent required for the purpose for which it is issued:

(a)

the name and address of the issuing authority;

(b)

the reference number of the file;

(c)

the elements on the basis of which the issuing authority considers itself competent to issue the Certificate;

(d)

the date of issue;

(e)

details concerning the applicant: surname (if applicable, surname at birth), given name(s), sex, date and place of birth, civil status, nationality, identification number (if applicable), address and relationship to the deceased, if any;

(f)

details concerning the deceased: surname (if applicable, surname at birth), given name(s), sex, date and place of birth, civil status, nationality, identification number (if applicable), address at the time of death, date and place of death;

(g)

details concerning the beneficiaries: surname (if applicable, surname at birth), given name(s) and identification number (if applicable);

(h)

information concerning a marriage contract entered into by the deceased or, if applicable, a contract entered into by the deceased in the context of a relationship deemed by the law applicable to such a relationship to have comparable effects to marriage, and information concerning the matrimonial property regime or equivalent property regime;

[…]

Annex III to the compulsory CSE model contains a section dedicated to the property regime of the deceased or other equivalent property regime

The regulation represents the completion of regulation 650 considering that the determination of the inheritance shares depends to a large extent on the property regime applicable to the person whose inheritance is concerned. For this reason, different coordination rules are envisaged between the two regulations (i.e. articles 4 and 13 as well as the recitals)

Direct instrumentality relationship between the content of the application and the content of the certificate: the application contains elements to the extent that the applicant is aware of them and are necessary to certify the elements for which certification is requested. Once the investigation has been carried out, when the elements are ascertained, the CSE is issued and contains the information to the extent necessary for the purposes referred to in art. 69.

Article 69

Effects of the Certificate

1. The Certificate shall produce its effects in all Member States, without any special procedure being required.

2. The Certificate shall be presumed to accurately demonstrate elements which have been established under the law applicable to the succession or under any other law applicable to specific elements. The person mentioned in the Certificate as the heir, legatee, executor of the will or administrator of the estate shall be presumed to have the status mentioned in the Certificate and/or to hold the rights or the powers stated in the Certificate, with no conditions and/or restrictions being attached to those rights or powers other than those stated in the Certificate.

3. Any person who, acting on the basis of the information certified in a Certificate, makes payments or passes on property to a person mentioned in the Certificate as authorised to accept payment or property shall be considered to have transacted with a person with authority to accept payment or property, unless he knows that the contents of the Certificate are not accurate or is unaware of such inaccuracy due to gross negligence.

4. Where a person mentioned in the Certificate as authorised to dispose of succession property disposes of such property in favour of another person, that other person shall, if acting on the basis of the information certified in the Certificate, be considered to have transacted with a person with authority to dispose of the property concerned, unless he knows that the contents of the Certificate are not accurate or is unaware of such inaccuracy due to gross negligence.

5. The Certificate shall constitute a valid document for the recording of succession property in the relevant register of a Member State, without prejudice to points (k) and (l) of Article 1(2).

According to authoritative Doctrine, the indication of the inheritance share can present difficulties where the deceased leaves a spouse, since the rights that the spouse can assert can find their source both in the inheritance rules and in those relating to the property regime chosen by the spouses ( the best known example is that of the lump-sum increase in the inheritance quota which is attributed to the surviving spouse by German law). This would imply that the certificate indicates the spouse's share of the inheritance not so much with reference to the part due to each heir (Article 68 letter l) but as an indication relating to the property regime (Article 68 letter h) and this indication would lack the effects referred to in art. 69.