A comparative analysis of succession laws in Europe and the viability of a common European succession law

Abstract

Over the years, various initiatives have taken place in an attempt to harmonise European private law, with contract law in particular being a field that has seen various developments. Succession law, however, as being a delicate issue in nature and one that is generally left in the hands of national jurisdictions, has not progressed that much in this regard. This thesis therefore seeks to comparatively analyse the laws of succession in civil and common law jurisdictions in order to ascertain whether there is some sort of ground in common between these two classes of law; and whether such common ground could be used as a solid basis for a common European succession law. While there are not many common law jurisdictions, with English law being the prime example, German law is used as the case study for civil law jurisdictions especially when considering that common European policy is, generally speaking, derived from such a jurisdiction. Furthermore, it would not have been feasible for the purposes of this thesis to delve into a further study involving other examples of civil law based jurisdictions. The thesis then looks at what European initiatives are currently in place and whether these are sufficient as law. Under EU law, one currently finds Regulation (EU) 650/2012, known as the Brussels IV Regulation, which seeks to resolve this need for a required solution at European level by introducing conflict of laws rules aimed at facilitating cross-border successions. The said Regulation focuses on matters appertaining to jurisdiction, applicable law, and recognition and enforcement of decisions - all hallmarks of the Brussels regime - but also introduces novel concepts such as the European Certificate of Succession, all aimed at simplifying the current confusio that reigns supreme in this area of law. However, only time will tell if this is successful.