Новый Регламент ЕС № 650/2012, вступил в силу с 17.08.2012. Он регулирует наследственное право, то есть права наследников на наследство, которое открывается, начиная с 17 августа 2012 года.
Статья посвящена вопросам, связанным с этим Регламентом.
Introduction
A recent piece of EU legislation – the European Succession Regulation, or ‘Brussels IV’ – will have potentially significant implications for anyone with assets in or connections with any of the EU member states to which it applies.
Brussels IV came into force on August 17 2012 and will apply to the estates of individuals dying on or after August 17 2015. Its aim is to:
- remove obstacles to the free movement of persons in relation to cross-border estates;
- allow EU citizens to organise their succession in advance; and
- guarantee the rights of heirs, legatees and other family members, and of creditors of the estate.
Brussels IV does not cover the United Kingdom, Ireland or Denmark, each of which has exercised its right not to opt in – at least for the time being in the cases of the United Kingdom and Ireland. The United Kingdom and Ireland chose to do so for a number of reasons, including concerns in relation to the obligation of one member state to apply clawback provisions applicable to lifetime gifts in the law of another state. The law of England and Wales, for example, does not include such provisions, but instead gives individuals full rights of lifetime and testamentary disposition over their property.
Brussels IV applies to succession to the estates of deceased persons, whether testate or intestate. There are a number of express exclusions from the scope of the regulation, including taxation and questions with regard to matrimonial property regimes. Property rights, interests and assets created or transferred otherwise than by succession (eg, by gift or survivorship) are also excluded from the scope of the regulation, but this is without prejudice to any applicable clawback provisions. There is also an exclusion for trust matters, save with regard to the devolution of assets and determination of beneficiaries under will trusts and statutory trusts on intestacy.
Under the regulation, the courts of the Brussels IV state in which a deceased person died habitually resident have jurisdiction in succession matters, but the courts of the Brussels IV state of his or her nationality may have jurisdiction instead if he or she chose to apply that law to his or her estate.
If the deceased was not habitually resident in any Brussels IV state at death, the courts of any such state in which assets of the estate are located will have jurisdiction to rule on the succession as a whole if the deceased had nationality of that state at his or her death or, failing that, if he or she was habitually resident in that state within five years of death. If neither of these conditions apply, the courts of a Brussels IV state in which assets are located will have jurisdiction to rule in respect of those assets.
The law of the state in which the deceased dies habitually resident (regardless of whether it is a Brussels IV state) will apply to succession matters, unless the deceased was manifestly more closely connected with another state or had chosen to apply the law of his or her nationality.
The new regulation provides for one Brussels IV state to recognise and enforce decisions, authentic instruments and court settlements made in another Brussels IV state, subject to certain exceptions which include a public policy exception. A European certificate of succession will enable beneficiaries and personal representatives to confirm their status and rights between Brussels IV states.
If an individual chooses the law of his or her nationality to apply to the succession of his or her estate, such a choice should be made in a testamentary disposition. It can be made expressly or implicitly – for example, by referring in the disposition to specific provisions of the national law or by otherwise having mentioned the law.
An individual may choose the law of any nationality that he or she possesses either at the time of making the choice or at the time of his or her death.
The substantial validity of the act by which the choice of law is made will be governed by the law chosen. Any subsequent modification or revocation of the choice of law must meet the requirements regarding the form of the modification or revocation of a testamentary disposition.
In most circumstances, renvoi (whereby the private international law of one state determines that a matter should be referred back to the law of a different state (literally, ‘sending back’)) will no longer be relevant under Brussels IV. However, renvoi will be relevant where the law which applies to a deceased’s estate under Brussels IV rules is that of a non-Brussels IV state, and that state’s law makes a renvoi to the law of a Brussels IV state or to the law of another non-Brussels IV state, which would apply its own domestic law.
Where a choice of national law has been made (and in certain other circumstances), no renvoi will apply.
The regulation will be relevant to anyone with assets in a Brussels IV state, as well as to those who are habitually resident in such a state at the time of their death (or, in certain circumstances, within five years of their death), regardless of the location of their assets. The application of the rules may give rise to certain estate planning opportunities, but careful consideration of the interaction of the rules of different jurisdictions will be required. A few examples highlight this point.
Nationals of non-Brussels IV states who are habitually resident in a Brussels IV state
The succession to the estates of individuals who were habitually resident in a Brussels IV state at the time of their death and who have not chosen their national law to apply to their estates will be determined by the law of their habitual residence. This will include their worldwide assets.
For example, if such a deceased person owned immovable property in England, the law of the situs of the property would apply under English rules and the rights of any forced heirs under the law of the habitual residence would be ignored. Under the existing law of a number of European countries, such as France and Germany, the courts accept the applicability of foreign situs rules in such situations. However, under the new rules, this will no longer be the case and the forced heirs would be entitled to a share in such immovable property. Depending on the law of the individual state, either the forced heirs would have a monetary claim against the rest of the estate in respect of their share of the English property or they would be regarded as co-owners of the property, despite the fact that their rights would be unenforceable in England, leaving them to seek compensation from the estate.
Clearly, any individual considering moving to a Brussels IV state should give careful consideration to how Brussels IV and the application of the law of the state to which he or she is moving might affect any lifetime or estate planning that he or she has already undertaken or may undertake in future. For example, the possible effect of any rules of that state in relation to clawback of lifetime gifts and dispositions should be carefully considered. Such a review should also examine whether there may be an impact on the terms of any existing or proposed pre or post-nuptial agreements to which he or she may be or become a party – at least insofar as they may affect succession to his or her estate.
The issues raised above should highlight the importance of considering whether to make a valid choice of national law to avoid adverse effects of the application of the law of the deceased’s habitual residence, where possible. A further advantage of making a choice of national law is that it will apply to the deceased’s worldwide estate, including any assets situated in a Brussels IV state. Thus, whereas any such assets might previously have been affected by the forced heirship rules applicable in the Brussels IV state, they will instead pass according to the national law. Since no renvoi will apply where a choice of national law has been made, this will be the domestic law of the deceased’s nationality.
Nationals of Brussels IV states habitually resident in non-Brussels IV states
On the other hand, Brussels IV nationals who are habitually resident in non-Brussels IV states might be tempted to let the law of their habitual residence apply to their worldwide estate to avoid the application of forced heirship rules.
However, depending on the circumstances, the private international law of the relevant non-Brussels IV state may apply a renvoi to the law of a Brussels IV state. An example of this would be a French domiciliary who dies habitually resident in England, leaving immovable property in France as well as movable assets. Under Brussels IV, his or her estate would be subject to the law of England and Wales. However, under English law, succession to immovable property is governed by the law of its situs, while succession to movable property is governed by the law of the deceased’s domicile – in this case, France. This renvoi to French law would be accepted by France under Brussels IV.
In such circumstances, a Brussels IV national wishing to avoid the forced heirship provisions applicable under his or her national law could consider changing his nationality to that of a non-Brussels IV state, assuming that his or her circumstances make that a realistic option. A choice of national law could then be made. It would be interesting to see how the courts of a Brussels IV state would react to such an action if it became common among their expatriates to do this.
Many of the detailed provisions of Brussels IV extend beyond the scope of this update, as do many other situations in which the rules are likely to apply. However, it will be clear that its impact will reach far beyond the European Union itself, becoming relevant to anyone who owns property in a Brussels IV state or chooses to live in such a state. Accordingly, individuals with cross-border interests (and their advisers) must be aware of the issues arising in order to determine how they might apply and whether, for example, a choice of national law should be made. Such a choice can be validly made now by testamentary disposition and should be made as soon as possible in order to ensure that it is in place before the new rules begin to apply to deceased’s estates in 2015.
Автор: Catharine Bell (Lawrence Graham LLP)
Источник: http://www.internationallawoffice.com/Newsletters/Detail.aspx?g=1bad88ef-bade-4363-a00d-7bdc3aae76d1&utm_source=ILO+Newsletter&utm_medium=email&utm_campaign=Offshore+Services+Newsletter&utm_content=Newsletter+2013-03-07