by Dr Mary Rose Micallef – Junior Associate
The modern era is witnessing a rapid increase of the mobility of persons. This situation has led to instances where one’s inheritance and heirs are spread across various jurisdictions.
Naturally these instances brought about conflict of laws as countries ended up regulating property of foreigners for the mere reason that such property was located within their territories.
Consequently hereditary estates that featured foreign elements ended up fragmented due to the legal diversity that had prevailed prior to the introduction of the Succession Regulation.
The EU Succession Regulation (Reg. 650/2012, which came into effect on the 16th August 2015) has established an innovative approach, with respect to the applicable rules that ought to regulate people’s successions.
The aims and scopes of this EU Regulation was to create a uniform, harmonious regime that would regulate successions in one same way. The said regulation has led to the creation of simplified procedures that are undertaken with respect to devolving hereditary inheritances.
By virtue of this framework, the prevalent legal conflict between Member States, has been significantly minimised.
Such regulation is applicable to successions that feature a foreign element – for instance the hereditary inheritance of an Italian national who has lived in Malta for a number of years. These said typical successions are likely to fall under the umbrella of such regulation.
In terms of the Regulation ‘succession’ means:
‘succession to the estate of a deceased person and covers all forms of transfer of assets, rights and obligations by reason of death, whether by way of a voluntary transfer under a disposition of property upon death or a transfer through intestate succession’.
What determines the applicable law of one’s succession is what legally termed, a connecting factor. Such factor may be defined as the deceased’s affiliation to a particular country.
The scope of the Regulation was not to create new substantive rules – it has created a legal framework that directs successions to the applicable competent jurisdiction.
The general jurisdiction of a succession that falls within the ambits of the Regulation is conferred to that state in which the deceased had his last habitual residence.
Therefore if a Maltese national passes away in Italy and Italy is deemed to be the place where he was habitually residing at the time of his passing, then Italian succession laws would apply to his hereditary estate – despite the fact that he was a Maltese national.
However it must be highlighted that the Regulation fails to define the term ‘last habitual residence’ and hence no legal definition exists in this respect.
A practical working definition would be the place that has been at the centre of the deceased’s interest, at time of death. This place is normally assimilated to the place where one has family ties and connections, land and his living premises. The place that s/he always return to – a place like home.
The last habitual residence of the deceased, was opted by the legislator because it proved to be the most apt in accordance with today’s lifestyles. This was expressed by the legislators themselves in recital (23) of the said Regulation, and namely that:
‘In view of the increasing mobility of citizens and in order to ensure the proper administration of justice within the Union and to ensure that a genuine connecting factor exists between the succession and the Member State in which jurisdiction is exercised, this Regulation should provide that the general connecting factor for the purposes of determining both jurisdiction and the applicable law should be the habitual residence of the deceased at the time of death.’
Yet, despite the good intentions of the legislator, last habitual residence has seeded its own issues. This connecting factor is considered to be lax, especially in comparison to nationality (lex patriae) and domicile (lex domicilii). The latter connecting factors, had featured certainty and formalism – features which habitual residence lack.
In view of this, the Regulation has allowed persons to choose their National State Law as the law that would govern their respective successions after their passing.
Hence in order to by-pass the uncertainty that is created by the last habitual residence, one may opt to name his national country as the country which ought to rule his hereditary estate.
Through this, the deceased would have pre-established his preferred choice of laws (being the laws of his nationality), and thus avoids falling subject to the fluctuating principles that are attributed to the principle of the last habitual residence.
Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Mary Rose Micallef on maryrose@abalegal.eu.