On 2 June 2022, the Court of Justice of the EU handed down another judgment interpreting the EU Succession Regulation. In the T.N., N.N. case (C-617/20) provisions on the declaration of the waiver of succession were analyzed for the first time. The Opinion to the case was delivered by the AG Szpunar.
Background
The deceased was habitually resident in Germany. When he died, his wife has initiated succession proceedings in Germany, the country of his habitual residence within the meaning of Article 4 of the Succession Regulation. German law, as applicable pursuant to Article 21(1) of the Regulation, perceived the wife and two nephews, resident abroad, namely in the Netherlands, as heirs. The nephews were informed about the succession proceeding by a letter from the German court dated of 19 June 2019. In September 2019 the nephews made a declaration of waiver before the court in the Netherlands. They have informed the German court about these declarations by a letter written in Dutch in December 2019. Copies of declarations were attached.
In January 2020, the German court informed them that it had not been possible to take account of their declaration as documents should have been accompanied by a translation into German. At this stage of the proceeding, pursuant to Article 1944 Bürgerliches Gesetzbuch (the German Civil Code), the nephews were deemed to have accepted the succession, as the six months period applicable to cross-border cases, has elapsed before the originals of the declarations were presented.
The higher instance court had doubts whether this is correct and has asked, inter alia, the following preliminary question:
Does a declaration concerning the waiver of succession by an heir before the court of a Member State that has jurisdiction for the place of his or her habitual residence, which complies with the formal requirements applicable there, replace the declaration concerning the waiver of succession to be made before the court of another Member State that has jurisdiction to rule on the succession, in such a way that when that declaration is made, it is deemed to have been validly made (substitution)?
Provisions Subject to Analysis by the CJEU
Along the general rules on jurisdiction and applicable law which apply to “the succession as a whole”, as indicated in Articles 4, 10, 21, 22, 23, the Succession Regulation contains specific rules with respect to declarations which might be made by the heirs or legatees (namely, concerning waiver of the succession, acceptance of the succession and designed to limit the liability of the heir). These rules are analysed by the CJEU in the commented case.
In accordance with Article 13, in addition to the court having jurisdiction in the succession case in general, the courts of the Member State of the habitual residence of any person who, under the lex successionis, may make, before a court, such a declaration, has jurisdiction to receive such declarations where, under the law of that Member State, such declarations may be made before a court. Then, pursuant to Article 28, such declaration is valid as to form where it meets the requirements of either lex successionis (Article 28(a)) or the law of the habitual residence of the heir making this declaration (Article 28(b)).
Reasoning of the Court
The Court of Justice explains the very practical solution provided for in Article 13 which considers the situation of the heirs or legatees in cross-border cases, in particular that it may well happen that they live in another Member State than the one, with which the deceased was connected and therefore has jurisdiction in succession proceedings (based on habitual residence – Article 4, or location of assets – Article 10 and other circumstances). Not to force the heir to travel abroad in order to, for example, simply waive the succession, this Article provides for “an alternative forum of jurisdiction which aims to enable heirs (…) to make their declarations concerning the acceptance or waiver of succession before a court of the Member State in which they have their habitual residence” [para. 37].
Additionally, the rule on alternative jurisdiction is “complemented by a conflict-of-laws rule contained in Article 28” [para. 38], which is “conceived in such a way as to recognise the validity of a declaration concerning the waiver of succession either where the conditions laid down by the law on succession are satisfied (…) or where the conditions laid down by the law of the State of the habitual residence of the heir are satisfied (…)” [para. 39]. The way this rule is construed remine other private international law rules contained in numerous instruments and aimed at favoring a validity (favor validitatis) of a juridical act, for example Article 11(1) of the Rome I Regulation on formal validity of a contract or Article 1 of the HCCH Convention on Form of Wills on formal validity of dispositions of property upon death. Article 28 of the Succession Regulation provides that the declaration made by the heir is valid as long as it conforms with requirements provided for in one of the listed laws (and not cumulatively by both of them)
The Court of Justice also noted that “there is a close correlation between those two provisions, with the result that the jurisdiction of the courts of the Member State of the habitual residence of the heir to receive declarations concerning the waiver of succession is subject to the condition that the law on succession in force in that State provides for the possibility of making such a declaration before a court. If that condition is satisfied, all the steps to be carried out before a court of the Member State of the habitual residence of the heir wishing to make such a declaration are determined by the law of that Member State” [para. 40]. Any other understanding of the provision would deprive it of its practical effect.
As the Succession Regulation does not provide for a mechanism for the communication of declarations to the court having jurisdiction, it is the heir or a legatee that should “assume the burden of communicating the existence of those declarations to the authorities responsible for the succession” [para. 47], and therefore, such declaration will “produce legal effects before the court having jurisdiction to rule on the succession, provided that that court has become aware of the existence of that declaration” [para. 39]. It seems however that there is no requirement as to the originality or translation of the declaration that must be strictly applied.
Taking all the above into account the CJEU ruled that:
a declaration concerning the waiver of succession made by an heir before a court of the Member State of his or her habitual residence is regarded as valid as to form in the case where the formal requirements applicable before that court have been complied with, without it being necessary, for the purposes of that validity, for that declaration to meet the formal requirements of the law applicable to the succession.
Conclusion
The understanding of the Succession Regulation presented by the Court of Justice in this judgement is practical and very much in line with the idea of facilitating the lives of heirs and legatees in cross-border cases. As usually happens we tend to be accustomed to rules and procedures of our domestic succession laws, whereas the application of the Regulation requires much more flexibility.
Background
The deceased was habitually resident in Germany. When he died, his wife has initiated succession proceedings in Germany, the country of his habitual residence within the meaning of Article 4 of the Succession Regulation. German law, as applicable pursuant to Article 21(1) of the Regulation, perceived the wife and two nephews, resident abroad, namely in the Netherlands, as heirs. The nephews were informed about the succession proceeding by a letter from the German court dated of 19 June 2019. In September 2019 the nephews made a declaration of waiver before the court in the Netherlands. They have informed the German court about these declarations by a letter written in Dutch in December 2019. Copies of declarations were attached.
In January 2020, the German court informed them that it had not been possible to take account of their declaration as documents should have been accompanied by a translation into German. At this stage of the proceeding, pursuant to Article 1944 Bürgerliches Gesetzbuch (the German Civil Code), the nephews were deemed to have accepted the succession, as the six months period applicable to cross-border cases, has elapsed before the originals of the declarations were presented.
The higher instance court had doubts whether this is correct and has asked, inter alia, the following preliminary question:
Does a declaration concerning the waiver of succession by an heir before the court of a Member State that has jurisdiction for the place of his or her habitual residence, which complies with the formal requirements applicable there, replace the declaration concerning the waiver of succession to be made before the court of another Member State that has jurisdiction to rule on the succession, in such a way that when that declaration is made, it is deemed to have been validly made (substitution)?
Provisions Subject to Analysis by the CJEU
Along the general rules on jurisdiction and applicable law which apply to “the succession as a whole”, as indicated in Articles 4, 10, 21, 22, 23, the Succession Regulation contains specific rules with respect to declarations which might be made by the heirs or legatees (namely, concerning waiver of the succession, acceptance of the succession and designed to limit the liability of the heir). These rules are analysed by the CJEU in the commented case.
In accordance with Article 13, in addition to the court having jurisdiction in the succession case in general, the courts of the Member State of the habitual residence of any person who, under the lex successionis, may make, before a court, such a declaration, has jurisdiction to receive such declarations where, under the law of that Member State, such declarations may be made before a court. Then, pursuant to Article 28, such declaration is valid as to form where it meets the requirements of either lex successionis (Article 28(a)) or the law of the habitual residence of the heir making this declaration (Article 28(b)).
Reasoning of the Court
The Court of Justice explains the very practical solution provided for in Article 13 which considers the situation of the heirs or legatees in cross-border cases, in particular that it may well happen that they live in another Member State than the one, with which the deceased was connected and therefore has jurisdiction in succession proceedings (based on habitual residence – Article 4, or location of assets – Article 10 and other circumstances). Not to force the heir to travel abroad in order to, for example, simply waive the succession, this Article provides for “an alternative forum of jurisdiction which aims to enable heirs (…) to make their declarations concerning the acceptance or waiver of succession before a court of the Member State in which they have their habitual residence” [para. 37].
Additionally, the rule on alternative jurisdiction is “complemented by a conflict-of-laws rule contained in Article 28” [para. 38], which is “conceived in such a way as to recognise the validity of a declaration concerning the waiver of succession either where the conditions laid down by the law on succession are satisfied (…) or where the conditions laid down by the law of the State of the habitual residence of the heir are satisfied (…)” [para. 39]. The way this rule is construed remine other private international law rules contained in numerous instruments and aimed at favoring a validity (favor validitatis) of a juridical act, for example Article 11(1) of the Rome I Regulation on formal validity of a contract or Article 1 of the HCCH Convention on Form of Wills on formal validity of dispositions of property upon death. Article 28 of the Succession Regulation provides that the declaration made by the heir is valid as long as it conforms with requirements provided for in one of the listed laws (and not cumulatively by both of them)
The Court of Justice also noted that “there is a close correlation between those two provisions, with the result that the jurisdiction of the courts of the Member State of the habitual residence of the heir to receive declarations concerning the waiver of succession is subject to the condition that the law on succession in force in that State provides for the possibility of making such a declaration before a court. If that condition is satisfied, all the steps to be carried out before a court of the Member State of the habitual residence of the heir wishing to make such a declaration are determined by the law of that Member State” [para. 40]. Any other understanding of the provision would deprive it of its practical effect.
As the Succession Regulation does not provide for a mechanism for the communication of declarations to the court having jurisdiction, it is the heir or a legatee that should “assume the burden of communicating the existence of those declarations to the authorities responsible for the succession” [para. 47], and therefore, such declaration will “produce legal effects before the court having jurisdiction to rule on the succession, provided that that court has become aware of the existence of that declaration” [para. 39]. It seems however that there is no requirement as to the originality or translation of the declaration that must be strictly applied.
Taking all the above into account the CJEU ruled that:
a declaration concerning the waiver of succession made by an heir before a court of the Member State of his or her habitual residence is regarded as valid as to form in the case where the formal requirements applicable before that court have been complied with, without it being necessary, for the purposes of that validity, for that declaration to meet the formal requirements of the law applicable to the succession.
Conclusion
The understanding of the Succession Regulation presented by the Court of Justice in this judgement is practical and very much in line with the idea of facilitating the lives of heirs and legatees in cross-border cases. As usually happens we tend to be accustomed to rules and procedures of our domestic succession laws, whereas the application of the Regulation requires much more flexibility.
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