The European Union Succession Regulation passed in 2012, which came into law on 17 August 2015, enables anyone in the European Union, with the exception of the United Kingdom, Ireland and Denmark, to enforce a Will drawn up under foreign law, irrespective of the applicable internal law. It is crucial to appreciate the implications, conditions and advantages of this type of Will.
The underlying principles of a Will and pertinent legal jurisdiction: Theoretically, under Private International Law, the deceased’s final country of regular domicile is deemed definitive, in terms of determining the country’s law applicable in the administration of a person’s estate. Where internal law permits, a Will may specify that assets be distributed in a manner different from that set down in Law. In France, for example, the testator may bequeath the disposable portion of an estate in a Will freely, provided this does not affect the statutory entitlement of the portion reserved in law to the testator’s legal heirs.
The application of foreign law in Europe: Prior to the above reform, in most countries, only foreign residents enjoyed the privilege of being able to benefit from the enforcement of inheritance law pertaining in their country of residence, although this applied solely to their movable assets. In other words, in matters of real estate property inheritance, a Notary was compelled to follow the provisions of law applying in the country where the immovable assets were located. Personal assets, however, were distributed in compliance with foreign law or a foreign Will, provided said Will was deemed valid.
Advantages of an international Will: This category of Will presently grants European residents holding any other second nationality – such as, for example, Israeli citizenship – the right to stipulate the application of foreign law in relation to the administration of the entirety of one’s European assets. This might be of interest to some since Israel permits complete testamentary freedom – without a statutory ‘forced heirship’ portion, such as that enforceable under French law for instance. However, such provisions apply solely to conditions pertaining to the civil sharing of the assets. They do not affect enforceable inheritance taxes, which remain governed by the deceased’s country of habitual residence, that of the legatees and the location of the assets bequeathed.
What would happen today in the case of an international Will with dispositions that violate principles of statutory reserved inheritance portion for instance? Some countries keep the right to interpretation, that one have to be careful and check the laws in the different countries involved.
Yaël Hagege Maruani
Attorney at Law and Notary