Connections of the closest kind

  • Author : Richard Frimston
  • Date : August/September
ABOUT THE AUTHOR: Richard Frimston TEP is a partner and head of the private client team at Russell-Cooke LLP, and chair of the STEP EU committee

I was really thrilled to get to the Metropolitan Opera in New York in May to see a cycle of Wagner’s Ring. While there, I enjoyed a discussion with some New York practitioners about issues for US citizens in relation to the EU Succession Regulation – Brussels IV (BIV).

As Erda says in the first episode of the Ring, Das Rheingold, shortly before bearing Wotan eight daughters, ‘Weiche, Wotan! Weiche!’

However, it is not only aliens who must be careful.

For states outside the BIV zone – the UK, Ireland, Denmark and any non-EU states – the choice of a testator’s national law as the law of succession in a will, effective 2015, is very important. Without a choice of law, the relevant succession law will be that of the testator’s habitual residence at the time of death.

For a testator resident in a state with schismatic private international or conflict of laws rules, a choice of law becomes even more vital. Under Art 26 renvoi back into the BIV zone in relation to immovables situated in the BIV zone will apply, unless a choice of law is made. Renvoi will not apply to such a choice of law under Art 26.

Art 17 sets out the choice of law provision, which enables a choice of the law of nationality.

“For states outside the BIV zone, choice of law in a will is very important”

A US citizen resident in London, with a house in France, dying after BIV comes into force in 2015, will still have the house subject to French succession law, since the conflict of laws rules of the UK, where they are habitually resident, currently make a renvoi for French immovables back to France. However, the US citizen can choose the law of their nationality, to which renvoi will not apply, so the internal law of their nationality will apply. But how is the relevant law to be decided, and which spousal or dependant protection rules will apply?

Art 28 sets out the rules for states, such as the US, the UK, Australia and Canada, that have more than one legal system:

‘1. Where the law specified by this Regulation is that of a state which comprises several territorial units each of which has its own rules of law in respect of succession, the internal conflict of laws rules of that state shall determine the relevant territorial unit whose rules of law shall apply.

2. In the absence of such internal conflict of laws rules:

(a) any reference to the law of the state referred to in paragraph 1 shall, for the purposes of determining the law applicable pursuant to provisions referring to the habitual residence of the deceased, be construed as referring to the law of the territorial unit in which the deceased had his habitual residence at the time of death;

(b) any reference to the law of the state referred to in paragraph 1 shall, for the purposes of determining the law applicable pursuant to provisions referring to the nationality of the deceased, be construed as referring to the law of the territorial unit with which the deceased had the closest connection.’

For the UK, the likelihood of a testator having retained a domicile of origin in part of the UK is higher than it is for those federal states, such as the US, Canada or Australia, that no longer regard a domicile of origin as being retained and that may revive.

For US citizens who are not domiciled or resident in the US, a real conundrum will be how a court in the BIV zone will decide which state in the US they are most closely connected to.

Short of any accommodation being available, will the traditional connecting indicators, such as a will made there, memberships of clubs, family ties, burial plots, support of sporting teams, newspapers read and regular visits, help at all?

ET, phone home and get that choice of law in place in your will. But where, precisely, is home?


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