16 May 2016

The Regulation has no retrospective effect so it only applies for deaths occurring after 17 August 2015(see Art. 83(1)).  As a consequence, domestic laws shall regulate deaths occurring before that death even though the administration procedure commences at any stage after the 17th August 2015. Denmark, Ireland and the United Kingdom did not take part in the adoption of the instrument therefore are not bound by it.

It opts for uniformity, by enabling a single piece of legislation of a cross border character, to regulate succession laws all over Europe. The premium target is to avoid potential conflicts of laws between different legal systems and jurisdictions regarding matters of succession. The Regulation includes matters such as:

  • Recognition and Enforcement of foreign judgements.
  • Introduction of the European Certificate of Succession.
  • Applicable law.
  • Harmonization of Cypriot Succession Law with international succession laws and law of European Member States.

Any such matter falling under the scope of Reg. 650/2012 shall override any domestic laws on the matter; also take prevalence over EU Laws on the matter of succession.  This makes it adamant, that anyone concerned about succession law matters in Cyprus should familiarise oneself about the basic concepts of the Regulation.

What is the “Connecting Factor” to the State’s applicable law?

Cypriot courts shall follow the Regulation’s provisions in order to determine the applicable law for each case based on the connecting factor which in turn shall determine the law of which jurisdiction shall apply. Covering matters from the beginning of the succession to the transfer of ownership of the assets forming part of the estate to the beneficiaries, including the administration of the estate

  • The “Habitual Residence” of the deceased at the time of his death will constitute the connecting factor determining the relevant Law in respect of the succession.

“Habitual Residence”?

  • Duration and regularity of the deceased in the State connected indicating a close and stable connection, indicating permanence.
  • Overall assessment of the circumstances of the life of the deceased during the years preceding his death.

A non exhaustive list of examples:

  • A constant traveller with no permanent settlement shall have his/her habitual residence by the nationality she/he holds or the location of all of his /her main assets.
    or
  • A worker/employee that had gone to work abroad or for other reasons lived abroad for a significant period abroad, having maintained however, a close and stable connection with his State of origin. The deceased could, depending on the circumstances of the case, be considered still to have his habitual residence in his State of origin in which the centre of interests of his family and his social life was located.

succesion law inner

Manifestly closest connection:

However, if the deceased had moved recently, just prior to his death, back to his country of origin but the vast majority of his assets remained at another State showing a manifest connection with the other state, then it is the Law of that other State manifestly connected with and not the one of habitual residence that shall be applied.

The Regulation:

APPLIES TO

DOES NOT APPLY TO

  • All civil-law aspects of succession to the estate of a deceased person, all forms of transfer of assets, rights and obligations by reason of death (whether by way of a voluntary transfer under a disposition of property upon death or a transfer through intestate succession).

  • Revenue matters or administrative matters of a public-law nature. It should therefore be for national law to determine calculation, of taxes and other liabilities of a public-law nature.

  • The Regulation being part of private International Law is triggered by an element of foreign character in each case.

Examples, if:

  • Creation, administration and dissolution of trusts.

a. Deceased being Cypriot had been maintaining his habitual residence abroad.

  • Matrimonial property regimes.

b. The beneficiary/ies habitual residence abroad

  • Transfers otherwise than by succession of property rights, interests and assets i.e: gift

c. The movable or immovable property rests abroad that is, beyond the jurisdiction of the domestic hearing Court, Cyprus Court, for example.

  • Matters under the scope of Company Law, generally legal entities such as partnerships, Limited companies etc.


d. If a clause of choice of foreign law/jurisdiction, has been included

e. In any other case, that gives rise to a conflict of laws situation between domestic and foreign succession laws.

 

**Such a foreign element must be sufficiently material to the case, in order to lead to conflict of laws triggering the Reg.


European Certificate of Succession Purpose?

  • The Certificate shall constitute a valid document for the recording of succession property in the relevant register of a Member State.
  • The person mentioned in the Certificate as the heir, legatee, executor of the will or administrator of the state shall be presumed to have the status mentioned in the Certificate and/or to hold the rights or the powers stated in the Certificate, with no conditions and/or restrictions being attached to those rights or powers other than those stated in the Certificate.
  • To include among others: date, name and address, reference number of the file, details of applicant and deceased, beneficiaries’ details etc
  • Demonstration of the rights of the heir/legatee mentioned in the Certificate and the attribution of the specific asset, or part of it, mentioned in the Certificate.
  • Powers of the person mentioned in the Certificate to execute the will or administer the estate.
  • The domestic agency in charge of the application shall cross-check the information and documentation enclosed. The certificate constitutes conclusive evidence of conformity with the domestic laws on succession but its evidential value shall not extend to cover matters such as the nationality of the deceased or whether property belonged to the deceased.
  • Any amendment to the Certificate should be made to known to any person that has been given/was entitled to a copy of it.

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