The Court of Justice on Waiver of Succession

On 27 March 2025 the Court of Justice handed down the judgment in the Ławida case (C-57/24) concerning the scope of jurisdiction to receive declaration on waiver of succession under Article 13 of the Succession Regulation. The preliminary question originates from Poland.

Facts of the Case

BA is a minor habitually resident in Poland. The deceased ZJ (a BA’s relative) was habitually resident in Germany at the time of death. Therefore, German courts have jurisdiction. BR is BA’s legal representative. Acting through BR, BA mistakenly failed to make a declaration on waiver of succession ‘within the required time limit’.

BR applied to a Polish court, in accordance with procedure described in Polish law, for an approval for BA to be freed from the legal consequences of such failure. Such an approval, in accordance with Polish law, would allow for waiving succession. The Polish court had doubts as to the extent of its jurisdiction distinguishing between ‘receiving a declaration’ and approving the application, which would free the heir from the legal consequences of the failure to make such a declaration within the required time limit.

Provisions of the Succession Regulation on waiver of succession

Article 13 of the Succession Regulation provides for ‘an alternative forum’ (as nicely put by the Court in para. 37) for accepting certain declarations (for instance, a declaration concerning the waiver of the succession). The purpose of this additional, alternative jurisdiction is, as Recital 32 explains, ‘to simplify the lives of heirs’, who might live in a Member State other than the one with jurisdiction over the particular succession case. This additional jurisdiction is vested with the courts of the Member State of the habitual residence of a person, which wants to make such declaration.

For this purpose, Article 13 requires that the law applicable to the succession case (lex successionis) provides for the possibility of making such a declaration before a court and that under the law of the Member State where such a declaration is to be received such declarations are also possible to be made before a court. Recital 32 adds that such declarations can be made before other authorities which are competent to receive these declarations under national law in that Member State (for instance, notaries).

The ‘conditions and effects’ of the waiver of succession are governed by the lex successionis pursuant to Article 23(2)(e) of the Succession Regulation. Article 28 Succession Regulation adds only, in accordance with favor validitatis approach, that a declaration is valid as to ‘form’ where it meets the requirements of either the law applicable to the succession (lex successionis) or the law of the Member State in which a person making the declaration has habitual residence.

As noted by Recital 32 persons making this declarations in their Member States should themselves inform the (generally) competent court or authority of the existence of such declarations within any time limit set by the law applicable to the succession. The practicalities of presenting such declarations in a Member State having (the general) jurisdiction over a given succession case were already subject to the case law of the Court of Justice (in TN, NN case, C-617/20 commented on the blog here and MYa case, C-651/21). This case however concerns a different aspect, at first sight, the extent of the jurisdiction of the court of a Member State of the habitual residence of a person making the declaration, but in fact – in my view – the case concerns the law applicable to the waiver.

The judgment of the Court of Justice

The Court of Justice stated in the judgment that ‘the courts of the Member State in which a person habitually resides who applies to be freed from the legal consequences of failing to make a declaration of waiver of a succession, within the required period, do not have jurisdiction to approve such an application’. In practical terms it means that, once the time limit for making the declaration is missed and an additional action must be taken, BA cannot waive succession in front of a Polish court.

Comments

The Court of Justice, as suggested by the referring court, based its reasoning on the literal wording of Article 13 of the Succession Regulation noting that ‘the courts of the Member State of the habitual residence of the heir are to have jurisdiction only to ‘receive’ those declarations’ (para. 31).

Later, the Court of Justice explained that:

Article 28 of Regulation No 650/2012 is conceived in such a way as to recognise the validity of the declarations referred to in that article, in particular where the conditions laid down by the law of the State of the habitual residence of the heir making the declaration – when the law of that State is applicable – are satisfied … (para. 36).

This part of the judgement seems problematic, especially when it refers to the law of the Member State of the habitual residence of the heir making a declaration as ‘applicable’. Here, additionally, it might be noticed that the Court of Justice, just like the referring court, on several occasions speaks about ‘the required time limit’ (for example, at para. 32). It seems that the Court has in mind the time limit provided for in Polish law for making a declaration on waiver of succession. In this context, the more general questions arise as to which law applies to the waiver of succession and to which – if any – matters the law of the habitual residence of the heir making the declaration applies.

Pursuant to Article 23(2)(e) of the Succession Regulation, the law applicable to succession (lex successionis) governs:

the transfer to the heirs … of the assets, rights and obligations forming part of the estate, including the conditions and effects of the …  waiver of the succession ….

Hence, the conditions of waiver and its effects are governed by lex successionis. The only exception to the applicability of lex successionis in that respect is the ‘form’ of such declaration. Pursuant to Article 28 of the Succession Regulation the declaration would also be valid as to its form if it would comply with the law of the habitual residence of the person making it. This provision clearly complements Article 13. If a person is making a declaration in the Member State of his or her habitual residence this declaration will be made in the form provided for in the law of that Member State.

Given the above, it seems that in a case as the one at hand, the court of a Member State of habitual residence of the person making the declaration ‘receives’ the declaration, but the law applicable to the admissibility of such declaration, any requirements to be met by the heir, including time limits and any institutions designed to remedy the missing of the prescribed time limit, as well as effects of such declaration are governed by lex successionis. Only the ‘form’ of the declaration might be conform with the law of the forum. Hence, in this particular case the institution provided for in Polish law designed for the heir who missed the time limit for making a declaration is not applicable. It is the German law which governs the institution designed for the heir who missed the time limit for making such declaration.

One might wonder whether the outcome of the case be different if German law was applied by the Polish court to the declaration on waiver and any institution designed to remedy the missing of the prescribed time limit …  For sure, the above case proves that the application of Succession Regulation in a way that it indeed can ‘simplify the lives of heirs’ does require understanding of the boundaries between different applicable laws, as well as understanding and application of foreign succession laws when needed.