X is a German national, UK resident for tax purposes for over 20 years. During that time X has lived with his wife Y a UK national, at Greenacres in England, jointly owned as their only home. X has no immovable property in Germany, but on the death of his mother he expects to inherit a quarter of her German estate. X also has shares in the family business in Germany.
I understand that under the EU succession regulation 650/2012 it is not possible for X to choose the law of habitual residence (England/Wales) to cover succession, it would only be possible to choose his law of nationality. Therefore as I understand it, since UK either is or is about to become a third state, Germany as the state of nationality would have universal jurisdiction if X had any assets at all in Germany.
Q1: If X could show that he is now domiciled in England and Wales, would English succession law be applied to his movables and the lex situs (in this instance England/Wales) to Greenacres?
Q2:If X took dual citizenship, could he elect under the EU succession regulation for English succession law to apply to his worldwide estate?
At great personal risk, I would venture that if X is or becomes domiciled (English meaning) in England, the English Courts would apply English law to his entire estate and this should be followed in the EU under Art 21.
If still domiciled (English meaning) in Germany then it appears likely that German law would apply by default (except for UK immovables) under Arts. 21 (habitual residence) and 34 (renvoi).
If he took UK citizenship then I see no barrier to choosing English law under Art 22 backed up by art 20.
Andrew Goodman
Osborne Clarke LLP
I agree it looks like the German Courts would still be seised with jurisdiction over his EU estate under Art 10, albeit applying English law if the English Court (habitual residence) found that English law should apply on the grounds of an English domicile of choice.
You raise a very interesting problem, especially as Regulation 650/2012 is fraught with detailed thought being needed to solve the problem. I agree with Andrew Goodman, but would add that your German National prepare an English Will for all assets outside Germany (assuming he is domiciled in the UK (using English law for such determination) and take German legal advice as to the German assets. Matters such as German Forced heirship arise, as well as whether or not any German Will, will be enforced by the German Courts in due time.
You should note that the Regulation 650/2012 does not apply to the UK, which increases the complexity of the situation.
There are several interesting Articles about Regulation 650/2012 including one by “Thy Will be done” and one by “wills.org.uk.”
This whole situation needs to be considered very carefully, and if the estate is large the advice of appropriate counsel is a must.