The European Succession Regulation
The purpose of the European Succession Regulation (the "Regulation") mainly consists in the introduction of uniform rules on jurisdiction and applicable law in order to avoid parallel proceedings and decisions in different Member States. Its scopes of application includes all civil aspects of succession except for matrimonial property regime, trust related and tax issues. The Regulation shall apply in all European Union Member States - except for the United Kingdom, Denmark and Ireland - to estates of persons dying after 17 August 2015 with either their last "habitual residence" in a Member State, leaving assets in a Member State, or in case of a choice of law in favour of the law of a Member State.
Impact for Switzerland
The estate of a Swiss national with last residence in a Member State, a Swiss resident with assets in a Member State, a foreign national with last residence in Switzerland, or a foreign resident with assets in Switzerland may be affected by the Regulation.
Under the Regulation, the general connecting factor is the last "habitual residence" at the time of the death. This notion is not defined in the Regulation except that its Preamble specifies that it should be understood as "overall assessment of circumstances of the life of the deceased during the years preceding the death and at the time of death" whereas under Swiss private international law, the "last residence" is the place where someone lived at the time of death with the intention of remaining there permanently. Therefore, potential conflicts are to be expected if both Switzerland and a Member State claim jurisdiction based on these two different definitions.
Moreover, the Regulation includes a subsidiary jurisdiction clause whereby a Member State shall have jurisdiction to rule on the estate if the deceased without a "last residence" in a Member State has nevertheless left assets in a Member State. Such rule may, from a Swiss law perspective, also results in a conflict of jurisdiction.
Finally, the Regulation provides the option of a choice of jurisdiction agreement when the parties agree that the courts of the Member State whose law has been chosen (see below) will have jurisdiction over the estate. Such possibility is only given if the testator has made a choice of law in favour of one of the Member State. Therefore, there will be no such option when Swiss law has been chosen.
2.2 Applicable law
Impact In Switzerland Of The European Succession Regulation
|Author:||Philippe Pulfer and Azadeh Djalili|
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