Rajat ylittävän perimyksen haasteista: esimerkkinä Englannin jäämistöoikeus
Avainsanat:
kansainvälinen yksityisoikeus, perintöoikeus, perintöasetus, oikeusvertailu, common lawAbstrakti
Challenges of cross-border succession: English inheritance law as an example
Because of the mobility of persons, more and more people move abroad. They also acquire assets located in other jurisdictions. Due to these factors, there have been over 450,000 cross-border successions in the EU every year. Therefore, one cannot remain insulated from varying legal perspectives concerning succession. Along with the diversity of both substantive inheritance law rules and private international law (conflict of laws) rules, the legal impediments to cross-border successions have increased over the years. To solve the impediments, the EU Succession Regulation came into force in 2015. The Regulation harmonises the private international law rules on cross-border successions between EU Member States.
However, the Regulation is not applied in Denmark, Ireland and the UK. That being said, the Regulation can and will affect e.g. UK nationals who are resident in another Member State (if that state has not opted out). The default position according to the Regulation is that the succession will be governed by the law of the country in which the individual died habitually resident. There is also an alternative: Such an individual may choose the law of his/her nationality to apply to the succession and administration of his/her estate. Therefore, the applicable law can be English law. The article describes the English rules concerning inheritance, including the rules concerning the administration of estate assets. There has been some confusion as to whether the UK is included within the definition of ”a Member State” or if it is treated as ”a third country” in respect of the Regulation. In practice this affects the way in which judgments on inheritance matters given in the UK will be recognised in other EU countries. The author argues that the UK should be treated as a third country and in respect of recognition this means that its judgments in inheritance matters should not be recognised according to the Regulation. Instead, all Member States should apply their own rules concerning recognition, as with all third countries. Furthermore, since the UK applies its own rules and practices concerning cross-border successions, the article covers these rules to demonstrate the difficulties one may encounter when dealing with (administering) e.g. estate property located in the UK.
In general, the point of the article is that there can be significant differences in inheritance law across different European jurisdictions. A consequence of the variation among succession law regimes – in respect to both substantive and conflict-of-laws rules – across jurisdictions is that it leads in cross-border successions to a four-piecepuzzle where each piece is important in order to build up and have a conception of a correct solution. International inheritance law cases are like puzzles in general: One is required to put the pieces together in a logical way in order to solve the puzzle.
