SSRN Id3506776

Ekia Gilbert KUM
Independent Researcher
Accredited Consultant Lobbyist to the European Parliament
FON KUM GILBERT CONSULTING
E-Mail: fonkum.gilbert@yahoo.fr
Date: 19th of December 2019
Question: What are the Comparative Legal, Procedural and Substantive Consequences
in Private International Law that Affects, the Doctrine of Renvoi and European Union
Member States, Under the Brussels IV Regulation (650/2012) and her “Opt-Outs”?
Abstract
European Union citizens are all legal entities that dispose personal rights and responsibilities
which emanate from the principles of EU substantive and procedural laws. These varies from
voting, free movement and establishment rights, and to succession, marriage and adoption
rights, within her Member-States. Such harmonised rights allows EU citizens to behave
substantively, in upholding their various societal interests as if they were all a single person.
It is for such a reason why, a brief analytical and historical presentation of the EU integration
project will be discussed in this article.
However, certain Member-States do exercise their “opt out” positions in some EU policy
areas which they do not wish to participate. This shall be seen in the case of the question in
focus of this Article whereby, the United Kingdom, the Republic of Ireland and Denmark
have “opted-out” from the EU Brussels IV Regulation on succession (No: 650/2012).
Researcher is interested in comparatively analysing and investigating on how the citizens of
Brussels IV Regulation and those of the “opt out” EU Member States, with habitual residence
and possessing assets within their jurisdictions are affected. The legal consequences on the
doctrine of Renvoi, under the Brussels IV Regulation on succession will be important to be
discussed as well.
Researcher will arrive at a conclusion whereby, he will advise all EU citizens on the
measures to be taken in order to protect their assets and property interests within the EU
Member States, before their demise. This will be followed by a reform proposal on the best
possible solution that should be adopted or inserted to the Brussels IV Regulation. Such a
reform proposal presented by researcher, will be henceforth put forward to all the EU
Members States citizens for approval through a referendum, before its application.
Electroniccopy
Electronic copy available
available at:
at: https://ssrn.com/abstract=3521080
https://ssrn.com/abstract=3506776
KEY WORDS: The European Union, Private International Law (PIL), Doctrine of Renvoi,
Single Renvoi, Double Renvoi, Brussels IV Regulation on Succession (No: 650/2012), “The
Opt-Outs” (English, Irish and Danish Legal Systems).
Electroniccopy
available at:
1 INTRODUCTION
1.1 The legal substance of this Article
Globalisation has provoked continuous international migration effects and tendencies
amongst citizens around the globe. This has conjured the undeniable realities whereby,
numerous distinct family members of either a European Union origin, or different
nationalities, electing their habitual residence abroad. Consequently, they establish
themselves in their newly elected countries of habitual or temporal residence and thus move
on to acquire and accumulate assets or properties. Such properties that could either be
moveable or immoveable, might later on become focal points of conflicts within families and
public institutions, when the owners of the said properties are deceased intestate. Disputes
related to the properties of the deceased could be principally based on questions of
succession, the applicable law (lex loci), and the enforceability of the adjudicated dispute.
This could also involve the lex fori lex causae effect, and henceforth triggering the Doctrine
of Renvoi, as could be disposed by the competent jurisdiction’s rules.
A good majority of deceased persons turn to ignore the juristic fact that, every sovereign
State has its own laid down norms or rules that govern issues that are related with succession.
Deceased persons with properties in various jurisdictions, who are not disposed with the
appropriate legal advice and knowledge, fail to understand that, some jurisdictions have
serious and undesirable complicated procedures of succession rules. When they acquire assets
or buy properties, they sometimes forget to be inquisitive on what the rules of inheritance
stipulate in such jurisdictions. This later on plunges them and their heirs into expensive
financial and procedural difficulties, related to the administration and possession of their
estates and properties.
Considering the research question in focus, researcher will refer to countries like England, the
Republic of Ireland, and Denmark which are European Union Member States, but have
“opted out” from the uniform Brussels IV Regulation succession instrument. The said
Brussels IV Regulation on Succession, has abolished the doctrine of Renvoi within its 25
signatory EU Member States. Through the Regulation, testators established within the EU
countries have the testamentary legal freedom of choice in electing1 the applicable law and
those that can be disposed of their estate or properties after their demise.
1
Article 22 of the Brussels IV Regulation on Succession (650/2012).
Electroniccopy
available at:
In the past years before the 17th of August 2015, the national courts of the Member States of
the European Union had been seriously congested with litigations that involved conflict of
laws issues related to succession. This consequently triggered numerous Renvoi procedures
amongst the national courts of EU Member States. The Doctrine of Renvoi was applied to
court cases that were related to inheritance or succession court related issues amongst her
Member States’ citizens. Such Doctrine of Renvoi procedures were all abolished after the
entry into force of the Brussels IV Regulation (No: 650/2012), on the Law of Succession,2 as
from the 17th of August 2015. Only three EU Member States which are the UK, the Republic
of Ireland and Denmark,3 had exercised their “opt out” powers, by not ratifying and
participating in the Brussels IV Regulation (No:650/2012).
It should be properly understood in terms of private international law (PIL) that, the legal
procedures and mechanisms that are employed to regulate issues that are related with estates,
private and personal properties are different. This is because, each State or country has its
own legal sources, tradition and culture in which she draws her rules and regulations from, in
resolving conflicts defined within her jurisdiction. All these procedural legal complications
fall under conflict of laws rules where the determinant legal factor of identifying which
country has jurisdiction in hearing a dispute emerges, and most often triggering a Renvoi. It
is for these important legal and political reasons that the European Union as a single political
entity, thought it to be very important in instituting a harmonised instrument on succession
issues. This article will be interested in analysing and investigating the Doctrine of Renvoi
relatively with the EU’s Brussels IV Regulation and the “opt-out” EU Member States.
EU citizens who possess properties and or assets in the EU Member States that have ratified
the Brussels IV Regulation, in case they die intestate, the default rule4 of the Brussels IV
Regulation will apply. This implies that, the succession rule of the assets and or properties
found in the Regulation’s Member States would be regulated by the law of the country in
which the deceased had his or her habitual residence. However, an EU citizen who possesses
2
Brussels Regulation (EU) No 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. The contents of the Brussels IV Regulation could be found in the
English language at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:201:0107:0134:EN:PDF and in French at: http://eur-
lex-europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:201:0107:0134:FR:PDF
3
The United Kingdom, the Republic of Ireland and Denmark all integrated the European Economic Community
(EEC) now called the European Union (EU), in the year 1973.
4
See the Article 21 of the Brussels IV Regulation on the law of Succession (650/2012).
Electroniccopy
available at:
property in the ratified Brussels IV Regulation Member States, could alternatively decide in
her inheritance Will that, the applicable law on her estates will be that of her nationality.5
Before the EU Brussels IV Regulation entered into force, the national courts of EU Member
States had to determine the jurisdiction that was competent in hearing a dispute by taking into
legal consideration certain factors. Such criteria known to be connecting factors, varied
between Member States’ jurisdictions and could include, place of temporal residence, place
of habitual residence, country of nationality and place of domicile. This also involved the
aspect of identifying whether the deceased’s properties involved were moveable or
immoveable. An EU Member State could apply the various tests that it considered
appropriate within her procedural legal framework or trigger a Renvoi procedure as necessity
obliged.
During the prior Brussels IV Regulation epoch, EU Member States had enormous conflict of
laws issues between themselves which went as far in creating diplomatic incidents amongst
their countries. Whatever be the case, the question here in focus remains unanswered until the
conclusion of this article will intervene as necessitated by the results of researcher’s analyses
and investigations. Such has to propose on how the EU Brussels IV Regulation Member
States and her “opt-out” countries, could reform the Regulation and present it to the citizens
of the Member States for approval through a referendum exercise. This will strive to unblock
the actual legal uncertainties that anchor the citizens of both entities (Brussels IV Regulation
and the “Opt-Outs), which are against their Will. It should be noted that, testamentary
problems have only added more conflicts onto existing unresolved succession disputes.
Consequently, these have disunited families, friends and sympathizers and have thus caused
societal havoc within both legal entities, in the realms of succession and inheritance policies
within the EU Member States and her “opt-outs. This article will conclusively propose a
uniform and harmonious legal rule which should be meant to resolve the invoked legal
uncertainties in focus. The legal objective will be to appease, reunite and reconstruct the
trusts and fraternal family bonds that have been shattered within members of the same family,
their friends and EU State institutions. It will conclusively propose what could be done in
order to minimise the various legal uncertainties that constantly cause havoc and disputes
5
See supra footnote on 1
Electroniccopy
available at:
within families in succession matters, after the intestate or testate demise of an EU citizen or
property holder from a third country.
2 The Purpose and Methodology of this Article.

The principal reasons why researcher has decided to analyse and investigate this question, is
as a result of the numerous conflicts and legal difficulties that exist between members of the
same family and public rules regarding succession matters. What definite solution could be
proposed in order to resolve these multiple disputes that exist between affected families and
other parties with interests will be of great importance in this article. The article will analyse
and investigate through the existing legal literature on the various juristic obstacles and
substantive law issues that affect EU citizens with assets and properties within the EU.
Researcher will move forward to analyse and investigate through the Brussels IV Regulation
on how EU and third country nationals who are domiciled or habitually residing in either one
of the 28 EU Member States are being governed and affected in related succession cases.
Through the analysis of the existing legal literature, researcher will purposely advise EU and
third country nationals who are possessing property in the Brussels IV Regulation and “opt
out” countries. The advice would focus on the relevant steps testators should take in
distributing their assets before death. The advisory legal steps will be meant to protect the
succession of their assets and property at their own volition, after their demise. Without
which, such properties and assets could be ruined by overburdened litigations that are often
very tedious, expensive and time consuming.
The legal methodology that will be used will permit him to arrive at a conclusion on the
results of the analyses and investigations of the research question in focus. Researcher will
analytically use the available legal theory in presenting a reform proposal to the European
Union, in order to be adopted and ratified by EU citizens through a democratic process. This
will reshape and modernize the actual Brussels IV Regulation on the legal dispositions that
are needed to satisfactorily and uniformly resolve succession cases more peacefully.
Researcher will be obliged to employ scholarly methods that emanate from legal books,
electronic legal sources and academic journals, legal dictionaries and encyclopaedias
including a case law references.
Electroniccopy
available at:
2 THE EUROPEAN UNION (EU)
2.1 The European Union as a legal and political entity.
The European Union originated from the political and economic ideas of the European Coal
and Steel Community (ECSC), which led to the signing of the Treaty of Paris in April 1951.
It should be recalled that Robert SCHUMANN, who was the former French Foreign Minister,
was one of the main architect of the European idea, through his Jean MONNET inspired
speech.6 Jean MONNET the French Minister of Economy, was also a key political and
economic player in the creation of the European idea. He presided over the common High
Authority that governed the European Coal and Steel Community (ECSC) that constituted six
Members which were, Germany, France, Italy, Belgium, The Netherlands and Luxembourg.
Under the leadership of the Belgian Foreign Minister, in the name of Paul Henri SPAAK, the
six founding Member States of the European Coal and Steel Community assembled in a
conference that was slated in the Italian city of Messina in the year 1955. Through their
unique political concordance, they all concluded the agreements that later on culminated in
the creation of the European Economic Community (EEC) on the 25th of March 1957 in
which the Treaty of Rome was established.7 The agreement also enabled the creation of the
European Atomic Energy Community (EURATOM). In the year 1993 when the European
Union (EU) was created, the European Economic Community (EEC) had to be integrated in
its institutional architecture and named as the European Community (EC).
This saw the absorbance of the European Community (EC) institutional bodies into the
European Union’s extended political architecture. It consequently triggered the definite
disappearance of the European Community (EC), which is now the European Union (EU)
under the constitutional framework of the 2009 enforceable Treaty of Lisbon. Today, the
6
“Europe will not be made all at once, or according to a single plan. It will be built through concrete
achievements which first create a de facto solidarity. The coming together of the nations of Europe requires the
elimination of the age-old opposition of France and Germany. Any action taken must in the first place concern
these two countries. With this aim in view, the French Government proposes that action be taken immediately
on one limited but decisive point. It proposes that Franco-German production of coal and steel as a whole be
placed under a common High Authority, within the framework of an organisation open to the participation of
the other countries of Europe. The pooling of coal and steel production should immediately provide for the
setting up of common foundations for economic development as a first step in the federation of Europe (...)”.
7
The Treaty which has been rewritten several times, through the Maastricht and Amsterdam Treaties,
continuously act as the European Constitution, and is politically and legally considered at this present date to be
the Treaty on the Functioning of the European Union, (TFEU), called the Treaty of Lisbon. The Treaty was
signed in Lisbon-Portugal by the EU Member States on the 13th of December 2007 and effectively enforceable
on the 1st of December 2009.
Electroniccopy
available at:
European Union is comprised of 28 Member States (MS) as of the 11th of July 2013, which
saw the entry of Croatia. It is defined within a territorial jurisdiction that is characterised by
democratic and rule of law values and principles. The Free Movement of Persons, Goods and
Services, a Common Foreign and Security Policy (CFSP) including her Justice and Home
Affairs institutional peripheries were all embedded in the Union’s three pillars’8 institutional
architecture. The European Union has a population of more than 500 million EU citizens as
of present and its integration project is continuous as more countries could be admitted in the
future.
2.2 The main socio-political and economic reasons that triggered the creation of the
European Union integration project.
In the aftermath of the Second World War, between the years (1939-1945), Europeans
thought it to be very important to put a definite end to such a catastrophic event from
occurring again. The imagination was shaped with the sole aim of preventing another War
from becoming a sad recidivist act in the future political Europe. This had to be done by
curbing the suicidal preposterous projects of European nationalist rivalry, who had plunged
the European continent into the Second World War. This preventive political strategy desired
by Europeans, saw the necessity of reshaping the mechanisms of European integration and
thus repositioning the political and economic maps of the European polity.
To achieve these socio-economic and political goals, the idea of the European integration
project emerged, which constituted the facts that convinced Europeans to agree that;
(1) Europeans were cognizant of their own weakness in waging a situation of War again in
the future.
8
As from the years 1993 to 2009, it is evident that, the European Union (EU) was made up of three main
institutional pillars that were meant to construct and govern its socio-economic and political integration project.
The institutional architecture of the three pillars was constructed within the framework of the Treaty of
Maastricht on the 1st of November 1993, before being later on deserted on the 1 st of December 2009, when the
Lisbon Treaty became effectively enforceable, after the European Union had acquired an integrated institutional
legal personality. The Union’s three pillars were constituted of: (1) The European Communities pillar, which
governed policy areas that involved her economic, social and environmental issues or policies. This pillar was
constituted of the European Community (EC), the European Coal and Steel Community (ECSC), until it expired
in 2002. The European Atomic Energy Community (EURATOM) was also part of this first pillar. The second
pillar was made up of the Common Foreign and Security Policy (CFSP), which handled issues that were related
to policy areas within the domains of the foreign policy and military issues. Then, finally the third pillar which
was called, the Justice and Home Affairs (JHA) pillar, dealt with Police and Judicial Co-operation in Criminal
matters (PJCCM). This pillar enabled the effective fight against organised crime within the European Union’s
Member States through effective co-operation.
Electroniccopy
available at:
(2) Europeans clearly acknowledged politically that, the Second World War had put a final
end to their previous hegemonic status in the World before the Second World War broke out.
They had realised that, the United States (US) and the Soviet Union, had acquired enormous
political, economic and military powers after the said War, than their European States.
(3) Consequently, Europeans had thought it politically wise to avoid entering into any
confrontational conflictual situation amongst themselves again. According to them, such
could trigger another sad and devastating situation that could be similar to the one of the
Second World War. This was because they had considered the facts that, the First and Second
World Wars had both emerged in the European continent in the forms of civil Wars.
Moreover, the European continent was the principal battle ground during the lifetimes of the
two Wars. Europeans had as a principal political integration mission, to reconcile and search
for a common peaceful ground whereby, France and Germany could be in a “détente
situation”. Such a situation at that time, ought to be approved by the United States of America
(USA). They had understood that, the European political and economic integration projects,
were going to create a common ground where peace, unity and development were going to be
guaranteed.
(4) Europeans in their majorities had wished that, the continent should be disposed with a
more liberal, fairer and thriving policies. This was in order to foster and strengthen their
relationships with other foreign countries that could be peacefully and progressively
developed through a multilateral framework of agreements. Finally, it should be seriously
recalled that, in the year 1946, the former British Prime Minister in the name of Winston
CHURCHILL, read a renowned and politically celebrated speech9 of all times at the
University of Zurich in Switzerland. His speech was considered by a majority of Europeans,
to must have triggered the first political and economic footings towards the post war period
of the European integration project.
9
"I wish to speak to you today about the tragedy of Europe. (...) Yet all the while there is a remedy which, if it
were generally and spontaneously adopted by the great majority of people in many lands, would as if by a
miracle transform the whole scene, and would in a few years make all Europe, or the greater part of it, as free
and as happy as Switzerland is today. What is this sovereign remedy? It is to recreate the European Family, or as
much of it as we can, and to provide it with a structure under which it can dwell in peace, in safety and in
freedom. We must build a kind of United States of Europe. (...) The first step in the recreation of the European
Family must be a partnership between France and Germany."
Electroniccopy
available at:
2.3 The institutional architecture of the European Union.
The European Union is institutionally constituted of the main European Union institutions
which are; the European Parliament, the European Council (Council), the Council of the
European Union, the European Commission, the European Court of Justice, the European
Court of Auditors, the Economic and Social Committee, the Committee of the Regions, the
European Investment Bank and finally the European Central Bank. Researcher will highlight
here only on the three main principal institutions of the European Union which are the
European Parliament, the European Commission and the Council of the European Union.
The European Parliament derives its legitimacy from the Article 14 of the European Union
Treaty, which clearly defines her legal status and principal operational mechanisms. This
includes the Articles 223-234, instituted by the Treaty on the Functioning of the European
Union (TFEU). The European Parliament is the legislative institutional body of the European
Union, which disposes the powers of voting and approving EU legislation and decisions. It
also disposes the power of voting the EU budget and the power to monitor and control the
acts and decisions of the European Commission.10 The European Parliament is composed of
751 Members (MEPs).
The European Commission, is the executive branch of the European Union and is
constituted of a big civil service staff, which proposes internal and external EU legislation to
the European Parliament and Council. It is disposed with initiative powers in making
proposals that are related with budget and legislation with non-Member States, and including
recommendation powers as well. This EU institution is also armed with implementation
powers as provided by the Treaties of the European Union, including delegated powers
conferred to it by the European Parliament and Council. The European Commission is also
provided with regulatory and consultative powers as with relations to the proper functioning
of other European Union institutions, notably the European Ombudsman and the European
Court of Justice.11
10
See the Articles 13 and 14 of the Treaty of the European Union (TEU) and the Articles 223 to 234 and 314 of
the Treaty on the Functioning of the European Union (TFEU).
11
See the (Articles 30, 49 TEU), Article 4(4) of the ESM Treaty), Articles 6, 17, 49, 50, 106, 108, 121, 126,
143, 201, 207, 218, 219, 234, 244 to 250, 258, 290, 291, 314, 317 of the TFEU and Regulation (EU)
No 182/2011).
10
Electroniccopy
available at:
The European Council, is made up of the heads of States or Governments of the Member
States of the European Union. Its principal objective is the putting in place of the necessary
political guidelines and legal instruments that should foster the development of the European
Union. A European Union personality like the President of the European Commission, is a
non-voting member of the European Council. At the beginning of any scheduled political
meetings in the form of summits, the President of the European Parliament politically
addresses the European Council. It was through the legal instruments of the Treaty of Lisbon
that, the European Council was instituted as one of the decision making body of the European
Union. The European Council has the power to suspend the Membership rights of a European
Union Member State, after having consulted the European parliament.12 It should also be
understood that, the terms of the European Union enlargement were being set-out through the
Copenhagen criteria by the European Council in the year 1993.
3 THE DOCTRINE OF RENVOI.

3.1 Renvoi
The Doctrine of Renvoi is considered to be a legal procedural means that is being applied on a
litigation, through the applicability of a foreign jurisdiction’s rules, in order to achieve the
required results. This is only in cases whereby a court is faced with a conflict of laws issue,
and must consider applying the rules of a foreign country. This is called “conflicts of laws”
which is also known as the rules of “private international law” (PIL). These litigious situations
usually occur during conflictual cases that involve connecting factors that constitute foreign
elements, or like in the administration of estates or properties. This doctrine can also be
employed in diverse private international law (PIL) disputes like cross boarder family problems
that involve marriage, adoption, inheritance and as well, international contracts and et al.
The word “Renvoi” derives its etymological origin from the French language, which means
“send back” or “return unopened”. This led to its prima facie impetus in the European
continent through the adjudicatory decision of the French Court of Cassation, (Cour de
Cassation) in the year 1882 in the Fargo case.13 However, it should be borne in mind that, the
first European continental case of Renvoi was called-up for adjudication before an English
12
See the Articles 7 (2), 13, 15 (1) and 42 (2) of the Treaty of the European Union (TEU), and the Article 235
(2) of the Treaty on the Functioning of the European Union (TFEU).
13
Cass. June 24, 1878, D. 1879, I, 56; Cass, February 22, 1882, S. 1882, I, 393. (For the English version of this
case, kindly see SEWELL, FRENCH LAW AFFECTING BRITISH SUBJECTS, 46-77.
11
Electroniccopy
available at:
court in the year 1841.14 It should be reiterated here that, the “Doctrine of Renvoi” is the juristic
process whereby, a competent court decides to adopt the required laws of a foreign jurisdiction
in any given case. This is usually triggered due to a conflict of law issue that arises in the
process of examining the prima facie of a litigation that opposes two or more parties.
The main legal reasoning regarding the doctrine of Renvoi is to prevent litigious parties from
engaging into forum shopping, by moving from one court to another. The doctrine of renvoi
enables the systems of the courts that apply its rules, to use the same competent laws that could
be applied by a foreign jurisdiction in resolving a dispute. The main substantive and procedural
objectives are to achieve the same expected juridical results irrespective of the country of
adjudication. The doctrine of renvoi is concentrated in obtaining the same adjudicatory
outcome of a litigation through the application of foreign law, which is known as conflict of
law rules or private international law (PIL). Under the doctrine of renvoi, there exist the single
renvoi and the double renvoi, as researcher will analyse and present below, in the context of
the Brussels IV Regulation and her “opt out” countries. The second European continental
litigation that implicated the doctrine of Renvoi, was witnessed in the Netherlands,15 fifteen
years after that of the English court.
3.2 The Single or Partial Renvoi System.

The single renvoi system principally refers to the choice of law rules of a foreign country’s
jurisdiction, in which a dispute could be easily resolved through the application of the laws of
the said foreign country. Brussels IV Regulation countries that apply the mechanisms of the
single renvoi system are like Luxembourg, Spain and Italy. An exemplary litigious situation
could be observed whereby, if a legal dispute emerges either within the jurisdiction of Spain,
Luxembourg or Italy, they will examine first if their domestic laws are applicable or it is the
one of another EU Member State. It could likely occur that, the applicable law on any given
case is that of another EU Member State or a third State. Such a State could likely apply the
doctrine of renvoi, in case it is a non-Brussels IV Regulation Member State (send back
unopened), to either Spain, Italy or Luxembourg.16
14
Collier v. Rivaz, 2 CURT. Ecc. 855 (1841).
15
Court of Guelderland (Holland), 5 REVUE DE DROIT INTERNATIONAL, Xiii, 4I0. There a gift was made
in Prussia in the Prussian form of an immovable in Holland. The Prussian conflict-of-laws rule required an
application of the lex sits; the Dutch rule, an application of the lex actus. The Dutch court declined the renvoi
back to Dutch law, thus sustaining the gift, because sufficient as to form under Prussian law, the lex actus.
16
See the Brussels IV Regulation’s Article 34(2) and its Preamble’s paragraph 57.
12
Electroniccopy
available at:
When such a litigious instance happens, either Spain, Italy or Luxembourg which are the
countries of the original forum (lex fori) of the case, will have to apply their own private
international law (PIL) or conflict of laws rules. This is because, if the lex fori countries which
are Spain, Italy and Luxembourg transfer the case to an EU country, the case will be sent back
unopened through the single renvoi system, to the lex fori countries of origin, being Spain, Italy
and Luxembourg. It is for this reason why, the lex fori countries have to accept the first
remission of the litigation, by applying their own domestic conflict of laws rules that should
solve the dispute. In doing so, the intervention will produce the same adjudicatory results as
the one expected from the foreign EU Member State or third country.
Another practical example of the application of the single renvoi system could be seen where,
a testator possessing a French nationality, who has elected his or her habitual residence in
England, but with a domiciliation in Spain dies. The said testator dies while leaving his or her
moveable property in Spain, which is a Brussels IV Regulation country, applying the single
renvoi system. In such a case, the competent court will be legally obliged to make a test by
examining in her prima facie case, on which jurisdiction (forum) is going to be the competent
forum in the absence of an election. As a result, it is the competent forum that has to apply her
succession rules in resolving any disputes relating to the testator’s property or assets except if
the deceased had elected an applicable law.17
In this case, considering the legal fact that Spain is the lex fori where the testator’s property is
located, will have to fully apply the succession rules of the testator’s country of “habitual
residence”,18 which is England, according to the rules of the Brussels IV Regulation. England
which is an “opt-out” EU Member State of the Brussels IV Regulation, will be relegated
through Renvoi and the applicable law will be Spain where the deceased’s property is located.
No Renvoi will apply if the deceased elected an applicable law that should govern her assets
or property.19 Researcher qualifies this procedural stage to be the “first remission” 20
of the
17
See the Article 22 of the Brussels IV Regulation on Succession (650/2012).
18
See Supra footnote on 1.
19
Kindly refer to the Article 34(2) of the Brussels IV Regulation on Succession (650/2012).
20
See the Fargo’s Case of the year (1882) and Soulié's Case of (1910)
Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54 (29 September 2005)
Regie Nationale des Usines Renault SA v Zhang
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503,
Re Schneider's Estate, 96 N.Y.S.2d 652 (1950)
Mercantile Mutual Insurance v Neilson (2005)
Amin Rasheed Shipping Corporation v. Kuwait Insurance Co [1984] 1 A.C. 50 (H.L.)
13
Electroniccopy
available at:
case. It should be noted here that, English succession rules consider but the place or concept of
domiciliation as the legal basis of determining which jurisdiction’s succession rules will be
applicable on the testator’s assets. (Re Askew [1930] 2 Ch. 259). (Also see the Forgo [1883]
land mark case law.
3.3 The Double or Total Renvoi System.

The double or total renvoi system is also known as the multiple renvoi operating system. It
applies when the same rules of private international law (PIL) will be applicable by the forum
court (lex fori court) on a litigious situation that constitutes foreign elements. Double renvoi
occurs when it is applied by the forum court in a dispute whereby, there exist no other
adjudicatory means of resolving the said dispute other than applying the conflict of laws rules
of a foreign jurisdiction. Also considered as the foreign courts doctrine, it enables the lex fori
court to sit in lieu of a foreign court and adjudicate a dispute like the said foreign court could
have done. The final legal result is aimed at obtaining the same outcome through the conflict
of laws rules of the forum court. (Lex fori). The EU countries that deal with the double renvoi
system are, England and France albeit there can be more than one or two total renvoi operations
or remissions involved in any given case. Such applicability of the double renvoi rule system
has mostly been employed in cases that are related with succession.21
An exemplary hypothetical situation on the double renvoi doctrine could be seen whereby, a
British citizen is declared deceased in the absence of a Will having been established, to
administer or distribute her properties and assets. At the time of her death, she had elected
domicile in Belgium but had left a substantial part of her properties and assets in England. If
the legal Counsel of the deceased lodges this case before a court in Belgium, the Belgian legal
authorities would have to employ her private international law (PIL) rules, by referring the case
to the English jurisdiction (first remission). Such a legal action or decision triggered by the
Belgian judicial authorities, will not hold any juridical grounds. This will be because, English
common law rules on succession are determined by the place of domicile of the deceased.
21
(See Re Duke of Wellington [1947] Ch. 506). (See the case law on the: Essential validity of a will on Davidson
v Annesley [1926] Ch. 692), (Intestate succession on the Forgo case, Administration des Domaines contra Ditchl
et autres, Cour de Cassation, June 24, 1878, Dalloz Recueil de Jurisprudence, 1879 I. 56; Sirey, 1882 I. 393.),
(Case law on an entitlement to foreign movables in: Ross v. Waterfield [1930] 1 Ch. 377), (Also see case law on
the recognition of common law marriages and their legitimacies on: Marjoribanks v. Askew [1930] 2 Ch 259).
14
Electroniccopy
available at:
Therefore in this case, a Renvoi (second remission) will occur and Belgian law will be
applicable and thus qualifying the process as a “Double Renvoi”.
4 THE BRUSSELS IV REGULATION ON SUCCESSION (No: 650/2012).

The European Union Member States all have their various inheritance and succession rules
which derive their legal sources either from the civil or common law traditions. However, the
application of their various national laws that deal with succession matters were all harmonized
in to a single EU international legal instrument called the Brussels IV (EU) Regulation
650/2012.22 It was ratified by 25 out of the 28 European Union Member States, thus excluding
the procedural rule of Renvoi between the ratified Member States. It also sets out the legal
dispositions granting a succession certificate to the deceased’s heirs and administrators within
the territorial jurisdictions of the Brussels IV Regulation Member States. The EU Member
States which refused ratifying the Regulation are the United Kingdom, the Republic of Ireland
and Denmark and are thus qualified as the “opt-outs”. It is legally evident that, the adoption of
the above cited EU Regulation has demonstrated the political and legal ambitions of the
European Union, to pull in the same unitary direction, with the sole objective to solidify her
integration project.
The harmonization of common succession rules governing the doctrine of Renvoi and granting
a common succession certificate, under the Brussels IV Regulation 650/2012, has been very
productive. It is evident that, some substantive and procedural benefits have been very effective
in the domains of choice of law, applicable law, jurisdiction and the uniform enforceability of
the harmonized rules between the 25 Member States. Despite such progress, researcher reckons
that, a reform proposal is still needed, in order to ameliorate certain legal aspects that, the
Brussels IV Regulation didn’t properly address. However, the integration policies of the 28 EU
Member States, have granted EU citizens the rights to easily possess moveable and
immoveable properties within numerous European Union Member States, through common
rules. The contracting Member States of the Brussels IV Regulation, have also significantly
witnessed the drop of conflicts of laws issues that are directly connected with elements that had
been the competence of national jurisdictions before the 17th of August 2015. These include
22
Regulation (EU) 650/2012 of the European Parliament and of the Council of July 4, 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, 2012 O.J. L
201/107 (Regulation (EU) 650/2012)
15
Electroniccopy
available at:
elements of Renvoi, choice of law, applicable law, jurisdiction, enforceability, a unique
certificates of succession and so forth.
However, these rights have not still been legally sufficient for the EU and Brussels IV
Regulation citizens, to easily resolve problems that are related with their estate planning and
succession matters. In the past, succession issues were transformed into serious conflictual
situations amongst families, the State institutions and the society at large. This was because,
there were no harmonized EU legal dispositions that could uniformly adjudicate on succession
litigations. The introduction of the European Certificate of Succession under the Regulation,
which enables a person prove his or her status and rights as a beneficiary or as
administrator/executor, has improved the uniformity of EU substantive rules on succession.
Other EU uniform instruments like the Hague Conference of 1989 on issues of harmonizing
the EU rules on succession, had been unsuccessful until only when the Brussels IV Regulation
650/2012 was adopted in the year 2012.23 Consequently, this harmonized set of rules under the
Brussels IV Regulation, enormously had a positive legal effect on related matters of estate
planning and the administration of the deceased or testator’s assets, within the 25 EU countries
that had ratified the Regulation.24 Before the Brussels IV Regulation effectively became
operational, it had to be armed with a transitional provision that is stipulated in its Article 83.
The said Article 83 reads as follows:
Article 83
Transitional Provisions
1. This Regulation shall apply to the succession of persons who die on or after 17 August 2015.
2. Where the deceased had chosen the law applicable to his succession prior to 17 August
2015, that choice shall be valid if it meets the conditions laid down in Chapter III or if it is
23
For a summary of past attempts at harmonization of European succession laws, see Barbara R. Hauser,
“European Harmonization,” Trusts & Estates (November 2010) at 62-63.
24
The 25 EU countries that will have the Regulation apply and are referred to as “Member States” in these
materials are: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland, France, German,
Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania,
Slovakia, Slovenia, Spain, and Sweden. Though the United Kingdom, the Republic of Ireland and Denmark will
not adopt the Regulation in lieu of to their own succession laws, there is still some uncertainty as to whether
under the terms of the Regulation they are given the same treatment as Members States or “third States” by the
25 states that will be applying the Regulation. The U.S. is clearly a “third State” under the terms of the
Regulation. Despite the confusion generated by the terms improperly used throughout the Regulation (EU)
650/2012 (see, for example, Article 20, Article 34(1) and Whereas (58)), some authoritative commentators
suggest that the distinction should be not so much between Member States and non-Member States, but rather
between States that are bound by the Regulation (EU) 650/2012 and those who are not. Under this approach,
Denmark, U.K. and Ireland would then be considered as “opt-out” Member States not bounded by the terms of
the Regulation (EU) 650/2012.
16
Electroniccopy
available at:
valid in application of the rules of private international law which were in force, at the time
the choice was made, in the State in which the deceased had his habitual residence or in any
of the States whose nationality he possessed.
3. A disposition of property upon death made prior to 17 August 2015 shall be admissible and
valid in substantive terms and as regards form if it meets the conditions laid down in Chapter
III or if it is admissible and valid in substantive terms and as regards form in application of
the rules of private international law which were in force, at the time the disposition was
made, in the State in which the deceased had his habitual residence or in any of the States
whose nationality he possessed or in the Member State of the authority dealing with the
succession.
4. If a disposition of property upon death was made prior to 17 August 2015 in accordance
with the law which the deceased could have chosen in accordance with this Regulation, that
law shall be deemed to have been chosen as the law applicable to the succession.
Article 84
Entry into Force of the Regulation
1. This Regulation shall enter into force on the twentieth day following that of its publication
in the Official Journal of the European Union.
It shall apply from 17 August 2015, except for Articles 77 and 78, which shall apply from 16
January 2014, and Articles 79, 80 and 81, which shall apply from 5 July 2012.
This Regulation shall be binding in its entirety and directly applicable in the Member States
in accordance with the Treaties.
Researcher analytically argues here that, the Brussels IV Regulation explicitly excludes certain
important spheres of private law. Such are related to the legal capacity of natural persons and
any concepts related to the principle of scission (multiple applicable legal systems to a
contract). The Regulation also disposed the deceased and his/her heirs the legal possibilities to
plan before the entering into force of the Regulation on the 17th of August 2015. The disposition
had legal effects only on citizens who died after the 17th of August 2015, without any
retroactive effect.
Article 1
The Scope of the Regulation
1. This Regulation shall apply to succession to the estates of deceased persons. It shall not
apply to revenue, customs or administrative matters.
2. The following shall be excluded from the scope of this Regulation:

(a) The status of natural persons, as well as family relationships and relationships deemed by
the law applicable to such relationships to have comparable effects;
17
Electroniccopy
available at:
(b) The legal capacity of natural persons, without prejudice to point (c) of Article 23(2) and to
Article 26;
(c) Questions relating to the disappearance, absence or presumed death of a natural person;
(d) Questions relating to matrimonial property regimes and property regimes of relationships
deemed by the law applicable to such relationships to have comparable effects to marriage;
(e) Maintenance obligations other than those arising by reason of death;
(f) The formal validity of dispositions of property upon death made orally;
(g) Property rights, interests and assets created or transferred otherwise than by succession, for
instance by way of gifts, joint ownership with a right of survivorship, pension plans, insurance
contracts and arrangements of a similar nature, without prejudice to point (i) of Article 23(2);
(h) Questions governed by the law of companies and other bodies, corporate or unincorporated,
such as clauses in the memoranda of association and articles of association of companies and
other bodies, corporate or unincorporated, which determine what will happen to the shares
upon the death of the members;
(i) The dissolution, extinction and merger of companies and other bodies, corporate or
unincorporated;
(j) The creation, administration and dissolution of trusts;
(k) The nature of rights in rem; and
(l) Any recording in a register of rights in immovable or movable property, including the legal
requirements for such recording, and the effects of recording or failing to record such rights in
a register.
It is analysed here that, a lot of the important legal aspects and realms of private law involving
succession matters have not been legally disposed. Inheritance and family law issues and rules
that are directly connected and attached with related issues of assets and property, estate
planning and assets administration, have not been disposed by the Brussels IV Regulation. An
exemplary analytical loophole could be noticed where, marital and contractual relationship
assets and property regimes have been explicitly ignored from the Regulation’s scope of
application.25 Consequently, EU Member States that are disposed with the rules governing
25
Regulation (EU) 650/2012, supra note 22, Art. 1(2) (d), at 201/116. As of now, the matrimonial property
regime is being governed by each national EU Member State in conformity with its private international rules.
This includes any applicable international Convention which could notably be like (the Hague Convention of 14
March 1978 on the Law Applicable to the Matrimonial Property Regimes which, as of 19 April 2016, which is
effective in only three countries that are: France, Luxemburg, and Netherlands. Kindly also see the 1978
Convention’s status table here: https://www.hcch.net/en/instruments/conventions/statustable/?cid=87.)
Therefore France, Luxemburg and Netherlands follow the rules of the 1978 Hague Convention, and any other
EU Member State follows its own private international rules. For example Italy follows the principles and rules
18
Electroniccopy
available at:
communal property, tangible and intangible assets regimes will be faced with legal restrictions.
Such legal restrictions would affect the testamentary private rights and freedoms of the heirs
(children, spouse et al.) of the deceased, who are still alive.
It is also evidently clear that, the Brussels IV Regulation explicitly restricts its legal dispositions
on areas that are related with assets and properties that are passed on through an inheritance
mechanism. Such a restrictive legal means is absolutely in contradiction with different property
and assets planning dispositions that are characterised by specific contractual instruments,
which aim at protecting the private property rights of the deceased. Private property rights and
instruments that could be related to such legal dispositions are basically defined within the
realms of joint property ownership, life insurance products and pension protection fund or
regimes.26
Within the legal limits of the dispositions of the Regulation’s Article 1 rules, it is analytically
substantiated by researcher that, there exist no precise rules governing conflictual issues related
with issues of “trusts or trusteeship”. This absence clearly conjures a legal loophole within the
juristic sphere of such an important legal aspect that is connected with the succession and
transfer of private property by a testator or deceased.27 Researcher asserts that, the legal and
political intentions of the Brussels IV Regulation, are to establish and promote the uniformity
of succession matters within its 25 EU signatory Member States. However, despite the
effectiveness of the instrument in harmoniously resolving succession disputes, certain legal
lapses still exist as pointed out in the body of this Article.
Moreover, there are serious juridical obstacles within the legal framework of the application of
the Brussels IV Regulation because there is total absence regarding the uniform application of
an inheritance taxation rule. A rule or legal disposition of such could allow the deceased to
elect the applicable law on the taxation of their estate or property in the aftermath of their
set out by Law of May 31, 1995 no. 218, and more specifically in its article 29 which relies on the common
national law of the two spouses (par. 1) She also considers either, if the spouses have different or more than one
citizenships, on the law of the State where their marital life is predominantly located (par. 2). Researcher
understands that, within the EU legal system, there is a “Proposal for a Council Regulation that is based on
jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property
regimes (COM/2011/0126 final - CNS 2011/0059)” which was adopted on March 16, 2011. Researcher
questions whether this is the first step towards a new EU Regulation on such a matter.
26
Jurists argue on the “libertarian philosophy” of the Regulation (EU) 650/2012 on how testator’s assets should
be distributed to his heirs by respecting his Will. Reference is made to Andrea BONOMI, Patrick WAUTELET,
“Il Regolamento europeo sulle successioni”, Giuffre’ Editore, 2015, at page 472, 473.
27
See Ibid on Art. 1(2) (J).
19
Electroniccopy
available at:
demise. This could only be effective in matters that are strictly related to succession rules within
the competent EU Member States’ jurisdictions. There is no legal disposition in the Article 1
of the Regulation that succinctly clarifies the ambits within which a signatory EU Member
State could by default impose the disbursement of estate taxes on the heirs, before the inherited
assets or property be set free or impounded.28
APPLICABLE LAW
Article 20
Universal application
Any law specified by this Regulation shall be applied whether or not it is the law of a Member
State.
Researcher criticizes the legal fact that, the notion of the qualification of “Member State” is
not stipulated with exactitude and precision on whether it refers to EU “Member State” or
Brussels IV Regulation “Member State”. Researcher’s analysis here demonstrates that, the
disposition of the applicable law is also entirely vague in the juristic sense, intention and spirit
of the raison être of the Brussels IV Regulation. This is because it does not clarify whether the
prescribed legal norms that are connected with the choice of the applicable law could rely on
the legal status of the deceased’s descendants, heirs and administrators. This implies that, the
Article 20 does not dispose if the heirs or descendants of the deceased’s place of residence or
domicile and their EU or non-EU citizenship, could have a legal effect on the applicable law.
Neither there is a rule that, such applicable law could be the succession rule of an EU Brussels
IV Regulation Member State.29 Consequently the rules of the Brussels IV Regulation affect all
EU and non-EU citizens who possess assets and or property within the 25 EU Member States
that have ratified the Regulation.
Contradictorily, there are explicit rules of limitations as with regards to the applicable law,
based on the uniformity and applicability spirits defined in the rules of the Regulation. This
legally affects all the 25 EU Member States and their citizens who are concerned with the
Regulation. It also includes all 3 “opt-out” EU Member States, whose citizens possess assets
and property within the jurisdictions of Brussels IV Regulation Member States. Another
important legal aspect could be noticed with the provisions of the Article 10 of the Regulation
which is qualified as the “Subsidiary Jurisdiction”. Such a provision could refrain the legal
28
Ibid Art. 1(1).
29
See Art. 20
20
Electroniccopy
available at:
rights of a deceased’s succession or inheritance situation by negatively impacting on the rights
of the deceased heirs or descendants. Situations of this type could only create more conflicts
within the societal and family realms of the deceased.30 Analytically examining the Article
10(2) of the Regulation implies that, even the forum of one of the 25 signatory Member States
of the Regulation have limited competence or jurisdiction on the assets and property of a
deceased that are located on her territory.
According to the Article 10(1) provision of the Regulation, it spells out that;
Where the habitual residence of the deceased at the time of death is not located in a Member
State, the courts of a Member State in which assets of the estate are located shall nevertheless
have jurisdiction to rule on the succession as a whole in so far as:
(a) The deceased had the nationality of that Member State at the time of death; or, failing
that,
(b) The deceased had his previous habitual residence in that Member State, provided that,
at the time the court is seised, a period of not more than five years has elapsed since
that habitual residence changed.
This provision clearly imply in its legal interpretation that, a Brussels IV Regulation Member
State’s court could be declared competent to rule on the entire deceased’s “Succession Will”
provided that, the rules stipulated in the Article (10-1) (a) and (b) were met satisfactorily.
However, researcher argues that, the provision does not provide for any legal disposition that
could be related with the deceased’s domicile and the location of his/her assets and property.
The disposition does not also stipulate on the deceased’s assets and property that could be
found out of the non EU Member States and precisely, the “opt out” countries of the Brussels
IV Regulation. The aspects of how important, qualitative and quantitative the deceased’s assets
and property that are to be involved in the Will were not mentioned as well in the said Article
(10-1) (a) and (b) provision.31
30
Article 10 of the Regulation (EU) 650/2012 entitled “Subsidiary jurisdiction” states: “1. Where the habitual
residence of the deceased at the time of death is not located in a Member State, the courts of a Member State in
which assets of the estate are located shall nevertheless have jurisdiction to rule on the succession as a whole in
so far as: (a) the deceased had the nationality of that Member State at the time of death; or, failing that, (b) the
deceased had his previous habitual residence in that Member State, provided that, at the time the court is seised,
a period of not more than five years has elapsed since that habitual residence changed. 2. where no court in a
Member State has jurisdiction pursuant to paragraph 1, the courts of the Member States in which assets of the
estate are located shall nevertheless have jurisdiction to rule on those assets.”
31
See Andrea Bonomi and Patrick Wautelet, “Il Regolamento europeo sulle successioni”, cit., pages 162, 165.
21
Electroniccopy
available at:
It doesn’t distinguish the scope of application on the deceased who could either be a citizen of
the Brussels IV Regulation Member State or the Regulation’s “opt out” Member State citizen.
Neither has a precise wording in the Article 10 stipulated on a third country citizen, including
the type of legal status required and the duration of such. Moreover, the number of years a
deceased who is a non EU citizen must have resided on the territory of a Brussels IV Regulation
country before death is not disposed. The qualification of the wordings “habitual residence” as
stipulated in the Article 10(b)32 is vague and not precise. This is because not all the 25 EU
Member States who are signatory parties to the Brussels IV Regulation, define what is
considered “habitual residence” in a uniform manner as meant by the spirit of the Regulation.
Researcher wish to reiterate here that, the universal applicability of the Article 20 of the
Brussels IV Regulation, is in legal contradiction with the rules of the Articles 6 and 12 of the
same Regulation. The Article 6 stipulates that;
Article 6
Declining of jurisdiction in the event of a choice of law
Where the law chosen by the deceased to govern his succession pursuant to Article 22 is the
law of a Member State, the court seised pursuant to Article 4 or Article 10:
(a) may, at the request of one of the parties to the proceedings, decline jurisdiction if it considers
that the courts of the Member State of the chosen law are better placed to rule on the succession,
taking into account the practical circumstances of the succession, such as the habitual residence
of the parties and the location of the assets; or
(b) shall, decline jurisdiction if the parties to the proceedings have agreed, in accordance with
Article 5, to confer jurisdiction on a court or the courts of the Member State of the chosen law.
(22)
Then, the Article 12 (1) of the Regulation edicts that, there is a “Limitation of Proceedings”
as it stipulates that;
Article 12
Limitation of Proceedings
1. Where the estate of the deceased comprises assets located in a third State, the court seised
to rule on the succession may, at the request of one of the parties, decide not to rule on one or
more of such assets if it may be expected that its decision in respect of those assets will not
be recognised and, where applicable, declared enforceable in that third State.
32
Ibid Art. 10(b).
22
Electroniccopy
available at:
2. Paragraph 1 shall not affect the right of the parties to limit the scope of the proceedings
under the law of the Member State of the court seised.
The interpretation of these Articles 6 and 12 of the Brussels IV Regulation clearly indicates
that, the European Union law makers had the interests of achieving the results of what they
intended to obtain as stipulated in the Article 4 of the Regulation which reads:
Article 4
General jurisdiction
The courts of the Member State in which the deceased had his habitual residence at the time
of death shall have jurisdiction to rule on the succession as a whole.
This Article 4 reflects the legal spirit in which the European Union legislators demonstrated
on the uniformity of the intended results of the Regulation on all its Member States. European
Union legislators’ juridical intention and political Will to tailor the juristic ambition of
achieving the same objectives of the Regulation in a uniform manner in all EU signatory
Member States of the Regulation, are clearly explicit in the Article 4.
Article 23
The scope of the applicable law
1. The law determined pursuant to Article 21 or Article 22 shall govern the succession as a
whole.
2. That law shall govern in particular:

(a) the causes, time and place of the opening of the succession;
(b) the determination of the beneficiaries, of their respective shares and of the obligations
which may be imposed on them by the deceased, and the determination of other succession
rights, including the succession rights of the surviving spouse or partner;
(c) the capacity to inherit;
(d) disinheritance and disqualification by conduct;
(e) the transfer to the heirs and, as the case may be, to the legatees of the assets, rights and
obligations forming part of the estate, including the conditions and effects of the acceptance or
waiver of the succession or of a legacy;
(f) the powers of the heirs, the executors of the wills and other administrators of the estate, in
particular as regards the sale of property and the payment of creditors, without prejudice to the
powers referred to in Article 29(2) and (3);
(g) liability for the debts under the succession;
23
Electroniccopy
available at:
(h) the disposable part of the estate, the reserved shares and other restrictions on the disposal
of property upon death as well as claims which persons close to the deceased may have against
the estate or the heirs;
(i) any obligation to restore or account for gifts, advancements or legacies when determining
the shares of the different beneficiaries; and
(j) the sharing-out of the estate."
Analysing this provision reveals that, the applicable law in the spirit and intention of the
Brussels IV Regulation is meant to govern the whole assets of the testator Article 23(1).33 That,
the applicable law shall govern particular aspects as instructed by the provision’s paragraph 2
(a-j).34 Researcher notices that, this provision does not distinguish between moveable property
and immoveable property in the sense of its paragraph 1. This is substantiated by the legal fact
that, certain national jurisdictions which are signatory parties to the Brussels IV Regulation
like France, clearly distinguish under her succession rules between moveable and immoveable
property or real property and other property.35
Article 21
General rule
1. Unless otherwise provided for in this Regulation, the law applicable to the succession as a
whole shall be the law of the State in which the deceased had his habitual residence at the time
of death.
2. Where, by way of exception, it is clear from all the circumstances of the case that, at the time
of death, the deceased was manifestly more closely connected with a State other than the State
whose law would be applicable under paragraph 1, the law applicable to the succession shall
be the law of that other State.
Researcher remarks with particular attention on the positive and uniformity sense of the
objective that this provision intends to attain. This is by clearly imposing on the applicability
of the law of the deceased’s place of “habitual residence” at the time of death.36 This
provision has harmonised the conditions of the applicable law on the deceased’s estate after
death, within the 25 EU Member States which have ratified the Brussels IV Regulation. It
could be noticed that prior to the effective entering into force of the Regulation on the 17th of
August 2015, signatory Member States to the Regulation, had distinct conditions as with
33
Ibid. Art. 23(1).
34
Ibid. Art. 23(2) (a-j).
35
Regulation (EU) 650/2012, supra note 22, Art. 23.
36
Ibid. Art. 21(1).
24
Electroniccopy
available at:
regards to the applicable law. Some EU and the Regulation’s Member States considered the
law of the deceased’s nationality, others admitted place of residence, nationality or the place
where the assets were located. In the legal framework of the Regulation, it is the place of the
deceased’s “habitual residence” that is considered, albeit vague and not precise as severely
criticized by researcher. Such a vagueness has erupted the procedural anger and wrath of the
European Court of Justice (ECJ) in her case law whose ruling was delivered on the 2nd of
April 2009.37
After the ratification and entering into force of the Regulation, only the law of the testator’s
place of habitual residence at the time of his or her death had to be accepted as the governing
law of the deceased’s estate. The only loophole in the sense of this provision as analysed by
researcher is that, the qualification of the term “habitual residence” is not specified in terms
of its juristic unilateral meaning.38 This is because various EU Member States that have
signed and ratified the Regulation, have different interpretations and meanings of what they
consider to be “habitual residence”. This is why, it is sometimes very difficult and
complicated in establishing a testator’s or deceased’s “habitual residence”, in the sense and
meaning of the general rule of the Regulation.39 The wordings of the preamble of the Brussels
IV Regulation on the notion of “habitual residence” are not precise as such even though, it
has stipulated a guidance on how the conditions of “habitual residence should be evaluated.40
The preamble was supposed to precisely specify on non-elastic instructions and or advice as
with regards to the legal tests that should be met in order to imply “habitual residence”. It
should have been legally constructed in the exact sense and interpretation of the objective of
the Regulation without giving room for any vagueness. However, the 25 EU Member States
37
See, Case C-523/07, A, [2009] ECR I-2805 (delivered April 2, 2009), point 34. (addressing the need for a
community definition of "habitual residence" in the context of Regulation (EU) 2201/2003 of the European
Council of November 27, 2003, concerning jurisdiction and the recognition and enforcement of judgments in
matrimonial matters and the matters of parental responsibility ("Brussels II").
38
Kindly see Brussels IV Regulation (EU) 650/2012, on supra foot note 22 including 35. The concept of
“habitual residence” is widely used in other international legal instruments like the 1989 Hague Conventions of
private international law, (PIL) precisely in the Article 3(2). The term “habitual residence” is also employed in a
wide range of private international law EU sources of both commercial and family laws matters. An example of
its usage could be found in the EU Regulation Rome I on (contractual obligations), the Rome II on (non-
contractual obligations), the Rome III on issues of (divorce and separation between spouses), and lastly by the
Regulation (EC) 4/2009 on maintenance obligations between parties. The Brussels II-bis that (covers issues of
divorce and the protection of minors), the definition of “habitual residence” test, in a more precisely clarified
way, to decide on the competent jurisdiction in any given litigation.
39
Ibid. 36.
40
See preamble 24 of the Brussels IV Regulation.
25
Electroniccopy
available at:
who are parties to the Regulation, must uniformly apply the rules of this provision in order to
achieve its expected results and juristic objectives, in the spirit of the Regulation.41
Researcher criticizes the legal fact that, the term “habitual residence” is not absolutely
clarified in its definitional meaning in the Regulation. He considers it to be vague albeit its
uniformity as interpreted and applied from the Regulation, has enabled succession litigations
to be easily resolved in the various ratified national jurisdictions. Such has evidently
facilitated the professional burden of Judges and the various national court personnel
concerned.
The Brussels IV Regulation does not dispose any prescribed rules in this provision on the test
that should be met as with regards to the expected minimum period of time in order to
substantiate the meaning of “habitual residence”. The legal and political facts that, European
Union Member States’ citizens can wilfully and easily establish themselves in one of the
Regulation’s 25 Member States, in the sense of “habitual residence”, is problematic. This is
because the deceased person might have elected residence in two or more Brussels IV
Regulation countries and thus extending the competences of distinct jurisdictions, in case no
choice of law was validated. It is for this legal reason why, it is advisable for the deceased to
adopt the interpretation of the meaning of “habitual residence” as connoted by the case law of
the European Court of Justice (ECJ).42
The European Court of Justice defines “habitual residence” to be a place where a person has
fully established his or her interests (meaning the centre of his or her life).43 The ECJ moved
on to precise that, such a term “habitual residence”, should not be confused or mistaken with
the meaning of a simple temporary and occasional presence of the thing, cause or subject.
That, the qualification of the meaning of “habitual residence” should have a certain specified
length of time, whilst demonstrating that, there’s an established stability therein. 44 Such
should have the meaning implying that, a person’s familiar and personal relationship should
supersede over his or her professional ties and interests to the said “habitual place of
residence”.45 Absolute consideration should also be taken on the level at which the person
41
Ibid. 23
42
See supra footnote on 37.
43
Case C-497/10PPU, Mecredi, [2010] ECR I-14309 (delivered December 22, 2010), point 51.
44
Supra footnote 43.
45
Case C-523/07, A, cit., point 44; Case C-497/10PPU, Mecredi, cit., points 54 and 55.
26
Electroniccopy
available at:
considers the importance of the place where he or she exercises the job assigned to do, and
the influence of such in her life. The preamble attempts to exemplify such rules but without
exactitude on how the situation should be responded upon precisely.
The writer argues here that, there exist an exceptional preferential consideration of the term
“habitual residence” in the legal sense that, the applicability of the rules therein, could be
very conflictual. This could be seen in cases whereby, rules of a competent forum court could
be applicable if it was substantiated that, at the exact time of death, the testator was more
attached and connected with a State different from the one of his “habitual residence”.46 This
provision does not spell out the remedial rule in which the conflictual situation that involves
two or more Brussels IV Regulation countries regarding the term of “habitual residence”
should be dealt with. Consequently, if a testator is defined within two or more countries that
constitute the qualification of “habitual residence” in the spirit of the Regulation, an
uncertainty and conflictual situations will occur.
An uncertain conflictual legal situation of such a magnitude will likely plunge the
administration or heir of the deceased’s assets into a severe difficult state as with regards to
the precise applicable law. The occurrence of such will be absolutely contrary to the
instructions outlined in the Article 37 of the Regulation, which is based on internal conflict of
laws within a State. It is also meant to apply within two or more States, involved in a conflict
of laws situation that implicates a testator’s assets. However, the application of this provision
by any competent Judge within the Regulation’s juridical sphere of competence, will always
avoid challenging the choice of law elected by the deceased’s descendants, as prescribed by
the rules of the Article 22 of the Regulation. It should also be understood that, the execution
of this mentioned Article 21(2) rules could only likely affect the sphere of the applicable law,
without intervening in the legal realm of the competent jurisdiction. Circumstances of this
kind could eventually instigate European Union jurisdictions to consider and apply the rules
of third countries, through the principle of Renvoi in order to definitely resolve a litigation.47
46
Regulation (EU) 650/2012, supra note on 22, Art. 21(2)
47
Testators should legally bear in their minds that, pursuant to Article 6(1) of the Regulation (EU) 650/2012,
courts may decline their jurisdiction only where the deceased has made a valid choice of law as allowed under
the terms of Article 22 (national law).
27
Electroniccopy
available at:
Researcher will present an exemplary situation that reflects a case of “habitual residence”
whereby, a German citizen dies just after he had established a new corporate entity (business)
in France. France was a country where he had just transferred to, in order to manage his
business. His “habitual residence” eventually implied to be France because he had relocated
there. But he did not relocate with his family members because they all still remained in
Germany. A majority of his valuable moveable and immoveable assets which comprised, a
hotel, industrial vehicles, his bank accounts and pension funds et al were all still located in
Germany. In this type of situation, a competent German court could rule that, by virtue of the
deceased’s centres of interests being his family and valuable assets which were still in
Germany, he was still attached and solidly connected there.
Therefore, under the rules of private international law, reflecting on the spirit of the meaning
of “habitual residence”, as prescribed under the provisions of the Article 21(1) of the Brussels
IV Regulation, the case is clear. The juristic clarity in the case is that, the deceased was still
manifestly more closely connected or attached with his country of origin (Germany) than
with France. Consequently, and by virtue of the rules imposed by the Article 21(1) of the
Brussels IV Regulation, German law will be the applicable law in lieu of French law.
Article 22
Choice of Law
1. A person may choose as the law to govern his succession as a whole the law of the State
whose nationality he possesses at the time of making the choice or at the time of death. A
person possessing multiple nationalities may choose the law of any of the States whose
nationality he possesses at the time of making the choice or at the time of death.
2. The choice shall be made expressly in a declaration in the form of a disposition of property
upon death or shall be demonstrated by the terms of such a disposition.
3. The substantive validity of the act whereby the choice of law was made shall be governed
by the chosen law.
4. Any modification or revocation of the choice of law shall meet the requirements as to form
for the modification or revocation of a disposition of property upon death.
The Article 22 of this Regulation instructs that, a testator may decide to elect the law of his
nationality, which will govern his entire assets or succession after his or her demisede or at
28
Electroniccopy
available at:
the time of choosing the governing law.48 This eventually implies that, all EU citizens who
possess assets or either moveable and or immoveable properties within any of the 25 EU
Brussels IV Regulation Member States, could wilfully elect the law of their citizenship. Such
a chosen law shall be considered valid even if should in case, the chosen country is not
disposed with the rules of law governing succession matters. This disposition is very
instrumental and provides the testator who could be in possession of a double nationality,
with the best possible legal opportunity to decide on the law that will govern her succession
after death. This rule consequentially protects the Brussels IV Regulation’s citizens’ from
being subjected and obliged with the forced heirship legal regimes like in France and Italy.
The provision thus manifestly confers the legitimate right to testators, in exercising their free
Will to grant a testamentary instrument at their own volition and consent.49
However, researcher argues here that, the Brussels IV Regulation’s testator’s citizenship
status is a pre-conditional test that is not even protected within the rules of the Regulation’s
scope of application. This seems to transfer the test of the determinant aspect of a testator’s
citizenship status,’ to the volitions and regulatory mechanisms of the Member States of the
Brussels IV Regulation. Even if a testator is in possession of multiple citizenships that
belongs to the 25 EU countries which are parties to the Regulation, this has no legal
consequences to his assets or succession after death. This is because a Brussels IV Regulation
Member State cannot legitimately contest the multiple citizenship status of a testator on
grounds that, one of the testator’s citizenship is not effectively valid.50
The only solution here will be that, according to the spirit and interpretation of the Brussels
IV Regulation, the Member State that is more connected with the testator, will be the
legitimate jurisdiction. Therefore, a competent court of an EU member country that has
ratified the Brussels IV Regulation, and which is more closely connected with the deceased,
48
7 Regulation (EU) 650/2012, supra footnote 22, Art. 22(1).
49
Researcher advices legal professionals and estate administrators or experts to very prudent on the legal and
substantive consequences that could be related to the truth that, a testator or clients of their might be having or
already have multiple Brussels IV Regulation citizenship status. An exemplary situation could be seen whereby,
Italy which relies on the Italian national law of the 5 th of February, 1992 no. 91, which became effectively
applicable as from the 16th of August, 1992. This instrument was implemented by a Presidential Decree dated
the 12th of October, 1993 no. 572.
50
Kindly refer to the following case law on: Case C-369/90, Micheletti, [1992] ECR I-4239 (delivered July
7,1992), points 10-11; Case C-148/02, Garcia Avello, [2003] ECR I-11613 (delivered October 2, 2003), point
28; Case C-168/08, Hadadi, [2009] ECR I-6871 (delivered July 16, 2009), points 51-56.
29
Electroniccopy
available at:
will apply her succession rules.51 Such will only be in situations or in a case of no elected
choice of law by the testator, at the time of his or her death. According to the Regulation, in
case of no election, the default rule applies automatically. Consequently, the place of
“habitual residence”, will be considered except in case of a conflict on determining which
default rule will be applicable when there are multiple places of “habitual residence”. As
earlier argued above, the law of the habitual residence with the closest connection and
attachment with the deceased will be validated and applicable on the deceased’s assets and or
succession situation.
Article 34
Renvoi
1. The application of the law of any third State specified by this Regulation shall mean the
application of the rules of law in force in that State, including its rules of private international
law in so far as those rules make a renvoi:
(a) to the law of a Member State; or
(b) to the law of another third State which would apply its own law.
2. No renvoi shall apply with respect to the laws referred to in Article 21(2), Article 22,
Article 27, point (b) of Article 28 and Article 30.
In analysing this Article, researcher will refer to his previous writings presented above in
which, he demonstrated that, the doctrine of Renvoi is principally defined within the juristic
realm of conflict of laws or private international law (PIL). Within the legal periphery of
employing the doctrine of Renvoi, there are usually substantial difficult juridical aspects.
They are as with regards to determining the exact and competent law that will be applicable
in any given litigation that falls under the competence of the doctrine of Renvoi. The main
judicial and procedural objectives of the doctrine of Renvoi are to test and assess the
surrounding situation of any determined case. A case of that sort is characterised with
numerous elements that emanate from one or more foreign jurisdictions, and as a procedural
result, clearly determines which lex causae will apply.
In doing so, the deciding jurisdiction within which the case had been presented at its prima
facie stage, will decide or test whether her conflict of law rules authorise or accept the
application of the rules of another foreign court, through the established rules of the doctrine
of Renvoi. Consequently, such a test when assessed has to determine at what juridical extent
51
Ibid. P.28.
30
Electroniccopy
available at:
an application of a foreign court’s rules could be applicable, within the legal limits of the
single Renvoi or the double Renvoi regimes.52 The only procedural remedy that could
eliminate the doctrine of Renvoi is when a choice of law was elected by either the testator in
the case of succession or in the case of contractual litigations.
An exemplary situation could be witnessed whereby, before the entering into effective
application of the rules of the Brussels IV Regulation, the succession instruments of a
Member State to the Regulation, could manifestly request that, a third country’s succession
rules should be applied. This could be possible if such a third country applied but the
principle or test of domicile or nationality to a deceased’s assets, in the process of succession.
The example is contrary to when the Regulation entered into force on the 17th of August
2015, which considers but where the deceased elected her “habitual residence” at the time of
death. Taking into procedural consideration the stipulations of the Brussels IV Regulation,
the doctrine of Renvoi’s rule is automatically incapacitated if it is substantiated that, the
testator had elected a governing law.53 That, it is the chosen law which should be applicable
to his assets or succession after his or her death.54
Having said that, in succession cases whereby, the testator did not elect a precise choice of
law that should be applicable to her assets after her death, a Brussels IV Regulation Member
State will act differently. Therefore, such a Member State will be obliged to accept and apply
the rules of the doctrine of Renvoi of a non-Member State of the Brussels IV Regulation. For
example, a third country’s private international law (PIL) rules could accept the application
of a Brussels IV Regulation Member State’s succession rules. In this light, the jurisdiction of
the latter would admit Renvoi by applying her succession laws. But it should be noted that,
such applicable succession rules from a Regulation Member State like France, would not
waive or incapacitate the implementation of her “forced heirship” succession rules based on
the default principle.
5 THE OPT-OUTS OF THE BRUSSELS IV REGULATION (650/2012)

The English Legal System, the Irish Legal System, the Danish Legal System vs. (The
Brussels IV Regulation 650/2012).
52
Ibid. pp. 12 & 14.
53
Ibid. Art. 22.
54
Ibid. Art. 34(2).
31
Electroniccopy
available at:
The English legal system on succession is governed by the provisions of the Inheritance
(Provision for Family and Dependants) Act 1975. The Irish Legal System on succession
matters is regulated by the (Succession Act of 1965), while inheritance cases within the
Danish Legal System are being adjudicated by the Danish (inheritance Act). As earlier
analysed and presented by researcher in the body of his writings in this article, it was clarified
that, the Brussels IV Regulation aims to address the pertinent questions that are instrumental
in succession situations or litigations. The questions are related to which law applies in
succession matters between the Brussels IV Member States, and the uniform recognition and
enforceability of her judgements, et al. Therefore, which of its signatory Members’ law will
be applicable in the regulation of a deceased’s assets or property after death, should in case
the deceased possesses assets in various Brussels IV Regulation countries.
This calls for the intervention of “Conflict of Laws” rules whereby, the doctrine of Renvoi
becomes applicable and instrumental, as procedural necessity will warrant. So therefore, the
spirit of the Brussels IV Regulation is intended to uniformly solve related conflict of laws
disputes on succession that could arise between her Member States. Britain, the Republic of
Ireland and Denmark having opted out, does not discharge her citizens who own property or
assets in one of the 25 Member States of the Regulation, from being affected by the rules of
the Regulation.
The United Kingdom, the Republic of Ireland and Denmark have exercised their legal rights
by opting out from the Brussels IV Regulation. Thus, the Regulation is not applicable to
assets that are possessed by the deceased citizens or habitual residents of these countries, and
which are located in the said opt-out countries. Brussels IV Regulation on the succession of
properties or assets of deceased citizens or persons that are located in the opt-out countries
will eventually imply that, the latter’s inheritance or succession rules will have to apply.
Under the English succession rules, (the inheritance Act of 1975), the Republic of Ireland’s
succession Act of 1965 and the Danish inheritance Act, the succession of a deceased’s assets
or property is governed by the law of his or her domicile.
Practical Examples.
An exemplary situation could be seen where:
Jennifer who possesses a Canadian nationality, and who was born and groomed in Quebec.
But she is living in either the United Kingdom, the Republic of Ireland or in Denmark, and
32
Electroniccopy
available at:
owns a house in Brussels-Belgium or one of the Brussels IV Regulation Member States. In
this case, if she is deceased in an intestate situation, the Brussels IV Regulation will be
applied on her assets or property located in Brussels or Brussels IV Regulation countries.
This is simply because, her property or assets are located in one of the 25 Brussels IV
Regulation countries, while her presumed countries of residence are the “opt-outs” of the
Brussels IV Regulation.
A second example could be that:

Mary who is either a British, Irish or Danish citizen and who lives in the England, is the
owner of a restaurant in Denmark. She will not be affected by the rules of the Brussels IV
Regulation because, she is a citizen of one of the Brussels IV Regulation “op-out” countries,
and who lives and owns property out of the Brussels IV Regulation Member States.
A third example is whereby:

Francis who is either a British, Irish or Danish citizen, who lives in London, possesses
vacation homes in Spain and Germany which are all both Brussels IV Regulation Member
States. He is by virtue affected by the default rules of the Brussels IV Regulation because, his
hommes are located in the Member States of the Regulation. Except if he had elected in his
Will that, the law of one of his presumed Brussels IV “opt-out” countries, which he possesses
a nationality should govern the distribution of his assets or property.
In another exemplary situation where:

Vivian is an Italian living in Rome. She has bought a private property in either the United
Kingdom, the Republic of Ireland or Denmark. She will be absolutely affected by the
Brussels IV Regulation because she is an Italian and thus living in Rome-Italy. Therefore,
possessing a private property in one of the Brussels IV Regulation “opt-out” countries, while
having elected her “habitual residence” in Italy-Rome, will automatically trigger the Brussels
IV Regulation. Consequently, the rules of the Brussels IV Regulation will have to be applied
based on grounds of her “habitual residence” being Rome in Italy.
The last example will be a case in which:

Thierry who is a Cameroonian national has elected as his “habitual residence” Denmark. He
owns houses, farm lands and expensive cars in Manchester-England and Dublin-Ireland. He
will not be affected by the Brussels IV Regulation because, all the countries where he has his
33
Electroniccopy
available at:
habitual residence and possesses properties are the “opt-out” countries of the Brussels IV
Regulation.
The writer analyses the Brussels IV Regulation here by arguing that, it has failed to
distinguish property in its provisions as there exist no distinction between moveable and
immoveable property therein. Therefore, assets and or property all imply both moveable and
immoveable property, which enables the Regulation to be applicable on both. Meanwhile, in
France, there is a clear legal distinction between moveable and immoveable property “bien
mobilier and bien immobilier”. Moreover, the sense of interpretation of the term habitual
residence which was earlier contested by researcher, as stipulated in the article 21(1), is
vague and not precise. It cannot mean the same in all Brussels IV Regulation Member States
as it could be noticed in the Netherlands where, you must have elected residence for a
minimum period of five years before qualifying to obtain the status of “habitual residence”.
(Aliens Act (Vreemdelingenwet, VW).
Researcher argues and advices here that, British citizens should be aware with the juristic fact
that, in the aftermath of the BREXIT, the Brussels IV Regulation will still have legal
consequences on them. Such legal and conflict of laws difficulties will still affect their assets
that are located within the 25 Member States of the Brussels IV Regulation, just in the same
manner like when the BREXIT had not yet been effective. This is legally and politically
motivated by the facts that, the UK is not a party to the Brussels IV Regulation, and she is
therefore considered as a third State according to the spirit of the Regulation. In this regard,
researcher reiterates here that, UK citizens, and those of Denmark and the Republic of
Ireland, “opt-out” Member States, must be cautious when establishing themselves in the
Brussels IV Regulation Member States. They should be very vigilant when they establish
themselves and buy property or possess assets in the Brussels IV Regulation countries. They
are obliged to scrupulously assess the legal rules of the Brussels IV Regulation Member
States, in which they either reside or possess property and or assets because the said rules will
surely affect their assets or properties after death, in the case of no election.
An exemplary situation could be seen whereby, some Brussels IV Regulation Member States
operate their succession legislation with “forced heirship”55 rules, which are different from
55
Spain, Germany, Portugal and France, Belgium, Cyprus, Italy and the Netherlands.
34
Electroniccopy
available at:
some other Brussels IV Regulation countries. This is whereby, their succession rules impose
by specifying that, the shares of the testator’s assets or estate are obligatorily distributed to
only close family members, as against the testator’s Will. Consequently, this is a serious
legal, societal and democratic problem that ignites flames of conflicts and litigations within
the realms of testators’ families and friends including the society as a whole. It thus further
provokes irrelevant financial expenses in engaging legal procedures. These types of rules
cause a lot of societal disquiet within families and other interested and legitimate parties of
the testator. It plunges the property owner into circumstances whereby, he or she could not be
able to freely distribute her assets as against the principle and rules of “forced heirship”. 56
6 Conclusions
Researcher concludes by asserting that, numerous international instruments have
continuously challenged and rejected the functioning mechanisms of the doctrine of Renvoi
within the procedural spheres of their jurisdictions. This argument could be substantiated
with the EU instruments of Rome I, notably in its Article 20 and the Rome II as disposed by
its Articles 11 and 24 provisions. The operational ability of the doctrine of Renvoi has also
been incapacitated and excluded from The Hague Conference’s Maintenance Protocol,
including The Protection of Adults Convention, and together from the Securities Convention.
The Brussels IV Regulation has also abolished the doctrine of Renvoi within the legal realms
of its competence, in favour of uniformity.57 Therefore, testators who own property and or
assets in the Brussels IV Regulation Member States, ought to take such legal aspects into
consideration before judicial action is taken as with regards to related matters of succession.
It should not be forgotten that, many European Union jurisdictions consider it an important
right and a cornerstone for heirs to receive inheritance or succession proceeds. This is why,
researcher conclusively recommends to property owners in the European Union and third
countries, to assume their succession responsibilities before it is too late. That, in order to
avoid an intestate situation, they should intelligently prepare the succession or inheritance of
their estate or property earlier, before death spells them out of the planet earth. Under such an
advice, testators should think thoroughly on how she wants her assets or property to be
distributed amongst her legitimately chosen or “forced heirship” heirs. The objectives of
56
See the Succession rules (Civil Codes) of Spain, Germany, Portugal and France, Belgium, Cyprus, Italy and
the Netherlands.
57
Ibid. Art. 34 of the Brussels IV Regulation.
35
Electroniccopy
available at:
researcher’s advices are grounded on the legal aspect of testators avoiding to be confronted
with intestate and forced heirship situations.
It is advisable that, if a testator believes, the Brussels IV Regulation will affect his assets or
property in the years ahead, it is absolutely necessary for him to re-evaluate the situation.
This could be done by reviewing the terms and conditions of his Will, in order to be very
certain that, all the relevant legal aspects and options must have been taken into careful
consideration. A testator should always put in mind that, in the process of effecting and or
modifying his Will, he should ensure legal scrutiny and conformity as with regards to various
national rules where his property is located. Testator should ensure through legal counsel
that, the succession rules of all the countries of the Brussels IV Regulation where his assets or
property are located, have been properly assessed in terms of taxation obligations.
This Article seriously advices testator to proceed with such taxation verifications, before
establishing, signing and executing any succession documents, in the strict interest of his
heirs and assets or property. A choice of the applicable law that should govern all the assets
should be elected by testator because in absence of such, the default rule of the Brussels IV
Regulation will be applicable. This will help in the harmonious distribution of testator’s
assets in non-forced heirship Brussels IV Regulation Member States, until when the proposed
abrogation of national forced heirship rules become effective through the reformed Brussels
IV Regulation. Testator is advised to elect the same rules that will be applicable both to the
law that will govern his succession and matrimonial assets or property. Researcher calls on
the assets or property owner, to regularly review her succession or inheritance Wills and
contract that had been previously established which are disposed and connected with one or
multiple foreign elements.
The Brussels IV Regulation should apply a uniform quota or percentage of taxes that should
be imposed on a deceased’s assets after her death, which should not be more than 05 percent
on all moveable, immoveable property or assets. The Regulation should distinguish between
moveable and immoveable property. The Regulation should as well move forward to specify
with absolute precision, on the test that should be passed in qualifying for “habitual
residence”, in the spirit of the Regulation. The Article 34 of the Regulation that deals with the
doctrine of Renvoi, should be legally armed with a multiple Renvoi system that should be
applicable with third countries that apply the rules of Renvoi.
36
Electroniccopy
available at:
Finally, the Brussels IV Regulation should be disposed with a provision that deals with assets
or property passing by survivorship. A mediation or Arbitration provision should be
inserted in the Brussels IV Regulation, as proposed in the conclusion of this Article. Such a
clause should precisely specify the time limits, choice of Arbitrator or Mediator, which
should be compatible with the legal spirit of the Brussels IV Regulation. It should thus
outline the substantive rights to further judicial or procedural actions by the parties
concerned. A review clause should be also included in the Regulation, which obliges
testators to justifiably review their Wills every 2 years before a Notary Public officer. This is
in order to avoid any legal loopholes and fraudulent acts that constitute Wills established
under duress.
After the drafted reform must have been presented to the European Commission as proposed
by researcher, the legal and political processes could then follow suite. This Article proposes
that, the European Parliament could trigger the democratic process by approving that, a
referendum should be conducted within all the EU Member States. This referendum should
permit EU citizens to approve the rules of researcher’s proposed reform herein, which should
be inserted in the Brussels IV Regulation. After such an approved democratic and legal
processes, the respective 28 or 27 EU national Parliaments and their Governments will then
proceed in the signing, ratification and application of such rules over the ratified EU
jurisdictions concerned.
Researcher strongly argues conclusively here that, these legislative, political and democratic
processes embedded in this article’s proposed reform, will be very instrumental in resolving
numerous succession conflicts within the European Union’s polity. It shall strengthen the
integration, unitary, rule of law and democratic principles and values of the institutional
framework of the European Union and her citizens. Such harmonised legal rights if approved
within the European Union Member States, will politically assure the protection of her
citizens’ properties and assets in a more flexible and legally convenient manner.
The reformed rights will boost EU citizens’ trusts in the socio-economic and political actions
of the politicians and institutions of the European Union. This reform is seriously needed
within the EU considering the legal and political facts that, we live in a competitive
globalized World today where, national Governments are obliged to properly address private
international law (PIL) issues audaciously. This will conjure peace, social justice, equity and
37
Electroniccopy
available at:
reinforce the property rights of EU and non-EU testators and their families, who possess
assets and properties within the Brussels IV Regulation Member States. It will also strengthen
a common unified EU legal and democratic senses of belonging in an EU polity governed by
the rule of law in which citizens’ private lives and properties should be properly protected
even after their demise.
38
Electroniccopy
available at:

SSRN Id3506776

Uploaded by

Copyright:

Available Formats

You might also like

SSRN Id3506776

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

SSRN Id3506776

Uploaded by

Copyright:

Available Formats

Ekia Gilbert KUM

Date: 19th of December 2019

2 The Purpose and Methodology of this Article.

3 THE DOCTRINE OF RENVOI.

3.2 The Single or Partial Renvoi System.

3.3 The Double or Total Renvoi System.

4 THE BRUSSELS IV REGULATION ON SUCCESSION (No: 650/2012).

2. The following shall be excluded from the scope of this Regulation:

(e) Maintenance obligations other than those arising by reason of death;

(j) The creation, administration and dissolution of trusts;

(k) The nature of rights in rem; and

2. That law shall govern in particular:

(c) the capacity to inherit;

(d) disinheritance and disqualification by conduct;

(g) liability for the debts under the succession;

(j) the sharing-out of the estate."

(a) to the law of a Member State; or

5 THE OPT-OUTS OF THE BRUSSELS IV REGULATION (650/2012)

A second example could be that:

A third example is whereby:

In another exemplary situation where:

The last example will be a case in which:

You might also like