EU Cross-border successions : the regulation's impact on Malta and its consequences

Abstract

The increase in the free movement of people has made successions more complex due to the international laws under which they are affected. This is amply demonstrated in the case of the European Union. To address this complex situation, the EU recognised the need for uniform rules which could simplify the process of cross-border successions. Years of difficult discussions between the Member States culminated in the formulation of Regulation No 650/2012 of the European Parliament and of the Council of 4 July 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 referred to as EU 650/2012 Regulation on Cross- Border Successions which enables citizens to attain automatically a rapid recognition of their status as heirs on the basis of the aforementioned Certificate of Succession. The dissertation analyses the legal basis of the Regulation giving due attention to the applicable law governing succession. It also examines the arduous process followed to achieve consensus on the harmonisation of rules including utilisation of a Green Paper to stimulate discussion and encourage proposals, which in turn provided important elements which were incorporated in the resultant Draft Regulation. Furthermore, the dissertation examines various aspects including, testate and intestate succession, and jurisdiction under the Regulation to formulate a comparative analysis of how these concepts are treated under Maltese, Italian and English legislation. Consequently, one can contrast, how citizens’ assets are affected under the applicable law of the above Member States. Although the U.K. opted out of this Regulation, it will still be affected by it to a significant extent. Due importance is given to Malta's eventual transposition of this Regulation to which it has raised justified objections based on various anticipated difficulties. At present, succession in Malta is regulated under the scission system but predicatements, such as the difficulties arising from holographic wills, need to be resolved preferably before implementation in 2015.