An analysis of the notary’s role in issuing the European Certificate of Succession

Abstract

The free movement of people is one of the fundamental pillars of the European Union. Increased mobility of persons has brought about an increase in cross-border successions and consequently more issues regarding the settlement of such successions. Since the deceased, heirs and assets of an estate can be located in several countries, different procedures would be applicable under each member state for succession to devolve and for heirs and beneficiaries to prove their status. As part of the harmonisation effort in private international law, the European Union introduced Regulation 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (hereinafter the Regulation). At the backbone of this Regulation is legal certainty and the legitimate expectations of EU citizens, to be able to plan their succession in advance.8 It provides the framework to be followed for cases of succession which involve cross-border elements, by creating the rules to solve the pertinent issues such as which member state has jurisdiction to rule on the succession and the law to be applied. Moreover, the Regulation has created a new instrument, the European Certificate of Succession (hereinafter referred to as the Certificate, or ECS) which intends to facilitate the claims made by beneficiaries of the estate in order to assert their succession rights in different MS which are party to the Regulation. This instrument is the first example of a public document created and entirely governed by EU legislation, but it is not mandatory and other national systems of proving succession rights can still be used. Unlike in certain MS where certificates of succession were already made use of, in the Maltese system this is a new notion. Apart from the CVJ, notaries have also been entrusted with the task of issuing this certificate. This competence, together with the harmonisation of laws and unification of succession under the Regulation, means that the notarial profession has the new challenge of being conversant with the law of other states. This research is important since the ECS is still a relatively new document with which not many notaries have had experience. Considering that the ECS has far-reaching effects of being automatically recognised in other MS, and the nature of the decisions taken by the notary regarding its issuance, the notary must be knowledgeable and diligent in order to take on this new function. Therefore, this report sheds light on the notary’s responsibilities under the Regulation regarding the ECS and what is expected from him/her as the issuing authority.