Have any practitioners yet analysed what the position would be if, as a result of the Referendum result, the UK (or at least England and Wales) becomes a “third State” rather than a “Member State” for purposes of the EU Succession Regulation? If a UK-citizen testator with property in the UK and an EU country has already signed a Will electing under Art 22 for the law of England and Wales to apply to the succession of their whole estate, or signs such a Will while the UK still is a Member State, will this be enforced in an EU Member State if the UK ceases to be a Member State before the date of their death?
Plantagenet Partners LLP
My understanding is that the other European countries have always considered us to be a third state for the purpose of these regulations-so, no change.
Brexit will at least clarify whether the UK is a “member State” or “third State” for the purposes of the Regulation.
An election under Art22 can be made in respect of the law of any State of which the testator holds nationality - it does not need to be a Member State so this should remain unchanged. The testator in your example should not therefore be prejudiced by Brexit.
It does however confirm that a Member State containing estate assets would have jurisdiction over the succession under Art 10(2). The Courts of that country “should” still be bound by the Art 22 election - albeit subject to the Art 30 carve out for land and other “special assets”.
Osborne Clarke LLP
This response does not go to the heart of the issue raised, but it does go to the interpretation that can be enforced and required of the will. If your will relies on the executorship recognition provisions then those of the will will need to stand within the Regulation on their own two feet in any event, as their recognition is independent of whether the law is that of a Member State or that of a third State.
However, given the fact that English law does not require an executor to transfer foreign land, see previous comments on the unrepealed common law position, any executors seeking to address the transfer of EU immovable property - i.e. outside the jurisdiction of the probate court and the Administration of Estates legislation ( limited to England and Wales) - may need to reconsider their position, in the wake of any Brexit. I would suggest that the degree of shock felt in Europe further afield than our immediate neighbours may lead to a degree of volatility in the interpretation and application of the Regulation in different Member States when a British nationality will is produced. Still more so when a will subject to habitual UK residence of a non-UK national is produced which can be subject to greater interpretative fluctuations.
If the will is made whilst the UK is a Member State, i.e. until the end of any article 50 period, then the UK testator exercising the nationality option , as a citizen of a Member State, irrespective of the opt out, will retain the fundamental EU citizen’s right to certainty and security referred to at § 37 and §38, which was the fundamental legal justification for the initiative in the first instance. I am not saying that certainty will not be given to non-EU or opt out State wills, merely that the right is an express EU citizen’s right.
That in itself may be an additional interpretative security.
I have seen some worrying attempts at transposing the English law of property to foreign immovables under the assumption that English law governs their transfer under article 23 2. (e). That is an error which may give rise to challenge in the country where the immovable is situated, particularly post-Brexit.