Thanks to Regulation n. 650/2012, the succession matters becomes part of the judicial cooperation at a European level. The original Eu approach, which excluded the succession matters from the judicial cooperation regulations and mutual recognition of foreign decisions (in particular, we refer to Regulation n. 44/2001 and then Regulation n. 1215/2012 which expressly excluded the succession matters), has been superseded.
At the level of single States, the succession matters has significant differences with regard to substantial law (for example, in part of the Countries, such as Italy, a reserved portion is expressly provided while in other Countries it isn’t; other countries admit succession agreements, while others do not): the Regulation provides for the applicable law, the competent Court, and then the recognition and enforcement of decisions given in a European Country.
In the same direction goes the European Certificate of succession, which permits that heirs and legatees have their status recognised in all Eu Countries: it has an obvious practical advantage which takes the heir (legatee) a step forward with regard to the claims, such as a claim for restitution, that he/her has to bring in a European country. In Italy, the authority to issue such certificate is granted to Notary Publics (“Notaio”), and it represents an additional element of simplification.
The matter of the “usual residence” is central: it is the criterion chosen by the Legislator to identify the succession law which is applicable in practice (as well as, the Court which is competent): it is a flexible criterion, probably too flexible, as the concept of “habitual residence” is not defined by the Regulation and the interpretations given by the scholars lead to uncertainty. As correctly observed, the habitual residence shall coincide with the place where there is a close and stable connection of the deceased at the moment of the death: it is still to understand whether such close and stable connection is revealed by economic – working aspects or by familiar ones. On this point, the criterion of the length of the stay is useful and can provide clarity. On the other hand, the corrective criterion of the habitual residence provided at paragraph two of article 21 of the Regulation (according to which the law of the State where the deceased had a manifestly closer connection prevails) can’t be ignored: a criterion which seems to privilege the law of the State where the deceased had its material assets.
The Regulation establishes that the deceased has the faculty to choose the applicable law, the one of his/ her Country of nationality: it seems to be a provision that shall be exploited, as it introduces an element of clarity.
An issue to be pointed out is the one dealing with the Court that has jurisdiction, above all in the case (just mentioned) that the deceased chooses the succession law of his/her country of nationality. On such issue, the law is intended to coordinate jurisdiction and the applicable law: so that the national Court applies the domestic law. However, there are multiple difficulties, and even if the Regulation provides for a very technical and detailed legislation, there are several points of potential misalignments. With this risk, not consistent with the goals of the law, that the Court that has jurisdiction shall apply a foreign law.
Another issue on which it will be necessary to monitor the evolution of Court decisions is the one governing rights in rem and trusts. The general rule introduced by such regulation is that it does not regulate such matters which are governed by single national law. On such general rule, the regulation establishes two temperamental mechanisms. In particular, with regard to rights in rem, it is provided that if the succession provides for a in rem right which does not exist under the national law of the Country where the asset is, it will be necessary to identify the equivalent closer in rem right provided by the law of such State. With regard to trusts, there is the possibility of succession trusts and it is the succession law which identifies the devolution of assets and the beneficiaries.
On such point, the intentions of EU legislator are commendable: however, the practical results shall be observed in concrete; it is enough to state that in Italy rights in rem are a “numerus clausus” (limited number) and it is still nowadays a dogma for Courts. Therefore, asking the Italian Court to grant a closer in rem right to the one provided under the foreign law, is something of an innovation, which the national Courts, which have become European Courts, will have to deal with.