Did Substantive National Succession Laws have an Impact on the EU Succession Regulation?

Summary

INTRODUCTION

Although the European Succession Regulation (ESR) has mainly been influenced by the private international law of the EU Member States and by the Hague Convention of 1 August 1989 on the law applicable to succession to the estates of deceased persons, the substantive law of the Member States had also a minor influence on it. One example for this is the scope of the ESR and in particular the concepts of succession, wills and succession agreements (see section 2 below). Other examples can be found in the concepts of authentic instrument (see section 3 below), notary (see section 4 below) and administrator of the estate (see section 5 below). A further example is the notion of ordre public (see section 6 below). Finally, the ESR also takes into account the fact that several Member States and third States comprise territorial units having their own substantive succession law or have sets of substantive succession laws applicable to different categories of persons (see section 7 below).

THE SCOPE OF THE EUROPEAN SUCCESSION REGULATION

European succession laws are far from unified or harmonised, although there are certain tendencies of spontaneous harmonisation. However, this convergence is restricted to broad tendencies, and the approaches and outcomes remain different. A few examples will illustrate this.

In all Member States, there is a strong tendency to improve the position of the surviving spouse and to increase his or her statutory portion. In most jurisdictions, the surviving spouse has inheritance rights in full property, as in German and Swiss law, but some legal systems restrict the statutory portion of the surviving spouse in certain cases to a life interest in the form of a usufruct, as in Belgian, French and Spanish law. In addition, the size of the compulsory portion is quite different. If the deceased leaves issue, the solutions vary from one-quarter of the estate to the whole estate. If the deceased leaves no issue, the spouse has to share the estate with the parents of the deceased, but siblings are increasingly excluded and some jurisdictions also exclude the parents.

In almost all civil law jurisdictions, children enjoy a compulsory portion, mostly fixed at one-half of the statutory portion, as in Austria, Belgium, Germany, Greece and Hungary.