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The Evidentiary Effects of Authentic Acts in the Member States of the European Union, in the Context of Successions

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DIRECTORATE GENERAL FOR INTERNAL POLICIES POLICY DEPARTMENT C: CITIZENS' RIGHTS AND CONSTITUTIONAL AFFAIRS LEGAL AFFAIRS The evidentiary effects of authentic acts in the Member States of the European Union, in the context of successions STUDY Abstract The EU Succession Regulation (Regulation 650/2012) allows for cross-border circulation of authentic instruments in a matter of succession. Authentic instruments are documents created by authorised authorities which benefit from certain evidential advantages. As this Regulation does not harmonise Member State substantive laws or procedures concerning succession the laws relating to the domestic evidentiary effects of succession authentic instruments remain diverse. Article 59 of the Succession Regulation requires the Member States party to the Regulation to give succession authentic instruments the evidentiary effects they would enjoy in their Member State of origin. The only limits on this obligation being public policy or the irreconcilability of the authentic instrument with a court decision, court settlement or another authentic instrument. This study, which was commissioned by the Policy Department for Citizen's Rights and Constitutional Affairs of the European Parliament upon request of the Committee on Legal Affairs, provides an information resource for legal practitioners concerning the evidentiary effects of succession authentic instruments in the 25 Member States bound by the Succession Regulation. It also makes recommendations for best practice. PE 556.935 EN ABOUT THE PUBLICATION This research paper was requested by the European Parliament's Committee on Legal Affairs and commissioned, supervised and published by the Policy Department for Citizen's Rights and Constitutional Affairs. Policy departments provide independent expertise, both in-house and externally, to support EP committees and other parliamentary bodies in shaping legislation and exercising democratic scrutiny over EU external and internal policies. To contact the Policy Department for Citizen's Rights and Constitutional Affairs or to subscribe to its newsletter please write to: [email protected] Research Administrator Responsible Céline CHATEAU Policy Department C: Citizens' Rights and Constitutional Affairs European Parliament B-1047 Brussels E-mail: [email protected] Editorial assistant Ms. Lucia-Cristina ACHIHAEI AUTHORS Professor Paul BEAUMONT, University of Aberdeen Dr Jonathan FITCHEN, University of Aberdeen Jayne HOLLIDAY LLM, University of Aberdeen LINGUISTIC VERSIONS Original: EN Manuscript completed in March 2016 © European Union, 2016 This document is available on the internet at: http://www.europarl.europa.eu/supporting-analyses DISCLAIMER The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorized, provided the source is acknowledged and the publisher is given prior notice and sent a copy. The evidentiary effects of authentic acts in the Member States of the European Union, in the context of successions ________________________________________________________________________________________ CONTENTS LIST OF ABBREVIATIONS 14 EXECUTIVE SUMMARY 15 Background 15 Aim of the project 16 Recommendations 17 1. GENERAL INFORMATION 18 1.1. The scope and operation of the Succession Regulation 18 1.2. The legal nature and operation of an authentic instrument in the context of succession 19 1.3. The role of the authentic instrument in the transmission of evidence via Article 59 of the Succession Regulation 22 2. METHODOLOGY 23 2.1. Phase One 23 2.2. Phase Two 23 2.3. Phase Three 25 3. THE DEVELOPMENT OF THE RESEARCH 26 3.1. Comparative analysis 26 3.2. Comparative Findings 28 3.3. Convergences and Divergences 29 3.4. Similarities of notarial role 29 3.5. Similarities of law: evidential presumptions concerning authentic instruments 32 3.6. On the location of challenges to the succession authentic instrument and incidental proceedings provided by the Succession Regulation 34 3.7. Public Policy a similar or dissimilar concept? 35 3.8. Differences 39 4. FINAL RECOMMENDATIONS 51 4.1. Publicity 51 4.2. Clarifying the meaning of "Acceptance" in Article 59 of the Succession Regulation 51 4.3. The Annex 2 Standard Form 51 4.4. Promoting the widest use of the Annex 2 Standard Form 52 4.5. The completion of a useful Annex 2 Standard Form 52 4.6. Reducing unnecessary costs and delay: legalisation 52 4.7. Reviewing the Succession Regulation 52 3 Policy Department C: Citizens' Rights and Constitutional Affairs __________________________________________________________________________________________ APPENDIX I: AUTHORITIES AND LEGAL PROFESSIONALS WITH COMPETENCE IN MATTERS OF SUCCESSION, OTHER THAN A JUDICIAL AUTHORITY, AS DEFINED IN ARTICLE 3(2) 54 APPENDIX II: COUNTRY PROFILES 55 AUSTRIA 55 The Austrian legal system 55 The concept of an authentic instrument in Austria 55 Evidentiary effects of domestic authentic instruments in Austrian law 56 Disputing the validity of the authentic instrument 56 The use of authentic instruments in domestic Austrian succession law 57 The Private International Law implications of the European Union’s Succession Regulation 650/2012 and Implementing Regulation 1329/2014 58 Austria is the Member State of origin: obligations concerning domestic succession authentic instruments 58 Austria is the Member State addressed: foreign succession authentic instruments 60 Austrian public policy 61 Incompatible Authentic instruments 61 BELGIUM 63 The Belgian Legal System 63 The Concept of an Authentic Instrument in Belgium 63 Evidentiary effects of domestic authentic instruments in Belgian law 64 Disputing the validity of an authentic instrument 65 The use of authentic instruments in domestic Belgian succession law 66 The Private International Law implications of the European Union’s Succession Regulation 650/2012 and Implementing Regulation 1329/2014. 67 Belgium is the Member State of origin: obligations concerning domestic succession authentic instruments 67 Belgium is the Member State addressed: foreign succession authentic instruments 69 Belgian public policy 70 Incompatible Authentic instruments 71 BULGARIA 72 The Bulgarian legal system 72 The concept of an authentic instrument in Bulgaria 72 Evidentiary effects of domestic authentic instruments in Bulgarian law 73 Disputing the validity of the authentic instrument 73 4 The evidentiary effects of authentic acts in the Member States of the European Union, in the context of successions ________________________________________________________________________________________ The use of authentic instruments in domestic Bulgarian succession law 74 The Private International Law implications of the European Union’s Succession Regulation 650/2012 and Implementing Regulation 1329/2014 75 Bulgaria is the Member State of origin: obligations concering domestic succession authentic instruments 75 Bulgaria is the Member State addressed: foreign succession authentic instruments 76 Bulgarian public policy 77 Incompatible Authentic instruments 78 CROATIA 79 The Croatian legal system 79 The concept of an authentic instrument in Croatia 79 Evidentiary effects of domestic authentic instruments in Croatian law 80 Disputing the validity of the authentic instrument 80 The use of authentic instruments in domestic Croatian succession law 81 The Private International Law implications of the European Union’s Succession Regulation 650/2012 and Implementing Regulation 1329/2014 82 Croatia is the Member State of origin: obligations concerning domestic succession authentic instruments. 82 Croatia is the Member State addressed: foreign succession authentic instruments 84 Croatian public policy 85 Incompatible Authentic instruments 85 CYPRUS 86 The legal system in Cyprus 86 The concept of an authentic instrument in the Republic of Cyprus 87 Evidentiary effects of domestic authentic instruments in Republic of Cyprus law 87 The use of authentic instruments in domestic Republic of Cyprus succession law 87 The Private International Law implications of the European Union Succession Regulation 650/2012 and Implementing Regulation 1329/2014 88 Republic of Cyprus is the Member State addressed – foreign succession authentic instruments 88 Republic of Cyprus Public Policy 88 Incompatible Authentic Instruments 89 5 Policy Department C: Citizens' Rights and Constitutional Affairs __________________________________________________________________________________________ CZECH REPUBLIC 90 The legal system in the Czech Republic 90 The concept of an authentic instrument in the Czech Republic 90 Evidentiary effects of domestic authentic instruments in Czech law 91 Disputing the validity of the authentic instrument 91 The use of authentic instruments in domestic Czech succession law 92 The Private International Law implications of the European Union’s Succession Regulation 650/2012 and Implementing Regulation 1329/2014 93 The Czech Republic is the Member State of origin: obligations concerning domestic succession authentic instruments 93 The Czech Republic is the Member State addressed: foreign succession authentic instruments 95 The public policy of the Czech Republic 96 Incompatible Authentic instruments 97 ESTONIA 98 The Estonian legal system 98 The concept of an authentic instrument in Estonia 98 Evidentiary effects of domestic authentic instruments in Estonian law 99 Disputing
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