European succession regulation

Tue 19 November 2019, Philippe Ropenga Forced heirship EU Succession Regulation 650/2012

European private international law aims at harmonising private international law. A case decided by the Cour de cassation, i.e., the supreme court that deals with civil, commercial, and criminal cases allows to understand how harmonisation works in practice. The Court had to apply a rule regarding general jurisdiction before turning to subsidiary jurisdiction. This is the logic of the law and the logic of the case. This post does however not only mention a recent case but also uncovers a trend that may not be easily noticed by an Anglo-Saxon lawyer who does not speak French. Hence, the structure of this post is different from that of a case note. It seems that harmonisation has a greater effect on formalities (1) than on reasoning (2).

1 Formalities

The EU has clarified its intention to simplify formalities (1.1) and the French Cour de cassation has recently been benevolent to a US jurisdiction by relying on a formal deed (1.2).

1.1 A small clarification

One can see that formalities are positively harmonised by a small change made to the French version, among other versions, of Article 5§1 of the European succession regulation (650/2012), hereafter mentioned as the Regulation, to prevent a court that has been chosen by the parties to decide a succession issue from declining jurisdiction by deciding that a claim concerns a specific issue and not the succession as a whole.¹ It is clear that only one formality has to be fulfilled to designate a single jurisdiction that will decide any succession matter. It is worth noting that this new French version matches the English one better.

This strong will to simplify formalities would be of little effect without the cooperation of national courts.

1.2 A benevolent jurisdiction

The EUCJ has made clear in Mahnkopf that courts should interpret the Regulation to favour mobility. Mobility is an objective mentioned in point 23 of the Regulation's preamble and therefore, a court has to take this objective into account. Mahnkopf has been analysed in an earlier post.² A recent case that has been decided by the Cour de casation involved three siblings.³ One of them claimed that French courts had jurisdiction over a flat payed by the deceased. The two other siblings held the legal title to it. The claim relied on Article 10§2 of the Regulation that reads as follows:

Where no court in a Member State has jurisdiction pursuant to paragraph 1, the courts of the Member State in which assets of the estate are located shall nevertheless have jurisdiction to rule on those assets.

The supreme court had to determine whether the Parisian flat was part of the estate. The Court followed a very formal approach and decided that since the legal title was held by two siblings and not by the deceased at the time of his death, it was not part of the latter's estate. The Court has declined any subsidiary jurisdiction and has stated that the court that had jurisdiction should determine the content of the estate. Here, the Cour de cassation has used a formality to reach a result that complied with the mobility principle.

It has been seen that French courts that dealt with private international law on a usual basis did not mind using formalities to increase mobility and to smooth the succession process. Let us now see if legal harmonisation has a similar effect on reasoning.

2 Reasoning

The French Cour de cassation has found a French way (2.1) to follow an international orientation (2.2).

2.1 The French way

It is important to bear in mind that forced heirship does not appear in this judgement. The heir who was disappointed about the distribution of the estate has argued that French courts should have jurisdiction at least over the distribution of the Parisian flat. The Regulation contains a general jurisdiction rule. Its article 4 provides that "The courts of the Member State in which the deceased had his habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole."

The deceased lived between France and the United States of America. How should one take this situation into account? The Regulation answers this question in its preamble at point 24. The said point provides that:

In certain cases, determining the deceased’s habitual residence may prove complex. Such a case may arise, in particular, where the deceased for professional or economic reasons had gone to live abroad to work there, sometimes for a long time, but had maintained a close and stable connection with his State of origin. In such a case, the deceased could, depending on the circumstances of the case, be considered still to have his habitual residence in his State of origin in which the centre of interests of his family and his social life was located. Other complex cases may arise where the deceased lived in several States alternately or travelled from one State to another without settling permanently in any of them. If the deceased was a national of one of those States or had all his main assets in one of those States, his nationality or the location of those assets could be a special factor in the overall assessment of all the factual circumstances.

Hence, habitual residence is a matter of fact. The Cour de cassation has stated that this matter should be decided by lower courts and not by itself.⁴ It has approved the Court of Appeal for having found that the time spent in one country or the other was not relevant and for having noted i. a., that the address printed on the deceased's passports was that of his home in New York where he had spent forty years working in the real estate sector, and that his long career had allowed him to buy significant properties in New York. As far as his person was concerned, the Cour de cassation stated that the Court of appealed had established that the deceased wished to be buried in Brooklyn next to his parents, that his fiscal domicile was in New York and that he did not benefit from any health insurance in France. English lawyers are educated to solve new matters by analogy. Can you recall a previous case that required to assess the connection of a French national to the USA by examining his professional and personal life? It has been analysed on this blog. What was it about? Forced heirship⁵! The test in this case is the same as that of the 2016 appeal case that has been studied in the first post that has been published on this blog. The Regulation has since entered into force; the reasoning that has been followed to determine the habitual residency of the deceased according to Article 4 of the Regulation is very French. Strange as it may seem, harmonisation regarding key concepts of European private international law largely depends on the cultural background and on local court practice.

This French way of solving matters serves harmonisation since it follows the same orientation as that of the law from other countries.

2.2 The international orientation

Several posts have been dedicated to forced heirship on this blog.⁶ It is a notion that has structured law and legal thinking in droit patrimonial or trusts and estates, if one wants to use what seems to be the best functional equivalent in the world of Equity. It will not disappear quickly even after a potential abolishment of forced heirship in French law. One needs to rely on this cultural background to find solutions that seem innovative rather than exotic.⁷ The law of trusts and estates seems to evolve towards greater freedom to gratify loved ones provided that reasonable provisions have been made for the rest of the family. Such a move is not easy and requires the practitioner to start from a point that is well known to him such as forced heirship in France or testamentary freedom in countries of common law.⁸

It has been seen that the French Cour de cassation followed an international trend that counter-balanced large testamentary freedom by paying attention to reasonable provisions made by the deceased for certain people.

In brief, legal harmonisation related to formalities progresses quickly whereas harmonising legal concepts requires time since practitioners need to gently integrate new concepts to an old cultural background.

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