The EU Succession Regulation 650/2012 now affects all successions involving individuals or, where non-resident, their assets within Europe, and therefore worldwide. It came into effect for deaths on or after 17th August, 2015.

Whilst Denmark, Ireland and the United Kingdom have "opted out" of the Regulation's application, it would be folly to assume that their residents or for that matter assets situated in these Opt out jurisdictions were not affected. Before coming to the situation in Jersey, I will draw on recent discussions in relation to the law applicable to English nationals with immovable assets in France by way of illustration.

The issues as to executorships, such as whether you can actually appoint an executor over French property under the Administration of Estates Act, 1925   on some British, mostly English,  successions in France will continue to dog English draftsmen for some time.  It is curious how many English lawyers have yet to trouble their libraries with research as to what the English law relating to immovables abroad actually is at present, as it remains unchanged. The position under the English common law prior to 1897 used to be that land wherever situated devolved directly to the heirs and legatees of the deceased in the manner inherited from the Normans namely that le mort saisit le vif without any form of representation or executorship taking possession.  That was only changed by the Land Transfer Act 1897, which merely applied to land in England, and Wales not to land or immovables abroad.  The result is that under English law, the old principle of direct seisin is applicable to land outside the anglo-welsh jurisdiction to the extent that English law applies. it is as simple as that. The effect of the Regulation is to arbitrarily enact that that principle of English law applies outside England and Wales within the other Member States of the EU which have not "opted-out", where a  British habitually resident individual dies leaving land within a Member State, by way of an ancillary jurisdiction and where a British national dies habitually resident in France having opted for the law of their nationality to apply under article 22 of the Regulation.

The law of nationality for a British citizen living in Jersey is an issue to be determined in each case. I am assuming for these purposes that we are dealing with the succession of a Jersey individual under the rules as to internal jurisdiction in a non-unified third State.

It is clear that the position in Jersey is more straightforward. I am not addressing that of Guernsey and the Isle of Man who have separate laws of administration of estates with which I am less familiar.

As a smaller jurisdiction, which "punches above its weight", we do not have the same interference of Treaties and conventions in the matter, and have therefore a very lean and effective approach given the territorial and geographical limitations on the effective jurisdiction of the Royal Court.

I am not going to analyse here the Island's constitutional position under the European Union or under Regulation 650/2012 in any detail. It can be summarised as follows:  Jersey is a separate territorial jurisdiction within the umbrella of the non-Unified United Kingdom, insofar as its position in relation to the Regulation is concerned.  The Crown Dependencies are distinct legal territories within a non-unified jurisdiction, for the purposes of the Regulation, although the delegation of the United Kingdom's powers in International matters granted to the Island by the United Kingdom may be of a nature to render that analysis a hasty assumption in the future as the Island takes up more of an independent stance in its own position internationally. Suffice it to say that the UK Act of Accession in 1972 and the arrangements set out in its Protocol n° 3 effectively remove the application of the  Regulation as a territory of a Member State unless the Island wished it, were the United Kingdom to decide to "Opt In".  At present the EU Regulation 650/2012 is not applicable under the Opt Out provisions in Denmark, Ireland or the United Kingdom. The Island is therefore a third state or jurisdiction in relation to the Regulation at present. However, judicial notice may be required of the Regulation and also rights under the Regulation may need to be considered by the Royal  Court as being available in law under the European enabling legislation in the Island's legislation: The European Union (Jersey) Law 1973, and in particular its articles 2 and 3. Whilst the wording of these articles is limited to the law and rights etc. arising under the arrangements for the Channel Islands established by the Treaties, it is clear that the Royal Court is not a mere Third State jurisdiction in relation to the Regulation as it may inquire of the CJEU as to the extent and effect of the Regulation under a preliminary ruling request.

I will address the issues from the perspective of view of a French secondary residence in a Jersey estate, as that is my area of expertise.

Firstly as "le mort saisit le vif" in Jersey in relation to immovables, no executorship over these is required in the Island to accomplish a transfer on death, or for that matter abroad, unless the lex situs requires it. As French law until now has not required it under the scissionist régime valid until 17th August, there might appear at first blush to be little need in principle to change Wills over French immovables, as no executorship is required under the law of the deceased's habitual residence in Jersey.  However, in France, the actual law governing the succession will change from being that of the situs of the immovable under the soon redundant scissionist régime, to that of the habitual residence of the deceased at the time of death. This might be that of Jersey. There is an option available for the law of the nationality of the testator available, but I will not discuss that in detail here, as that option for a individual resident outside the territorial application of the Regulation needs careful consideration as part of their overall succession.  There is therefore a need to review wills of French property urgently, as their drafting will mostly rely on French principles of succession over immovables rather than the freer Jersey ones.

I would suggest also that given Jersey's Norman flexibility in these matter, it remains open for a Jersey will to appoint a legatee as an executeur testamentaire under French  Code Civ 1025 et seq over an ancillary issue of a French immovable and movables as the law of the Habitual residence does not prohibit this, and allows it. I remind everyone that "le mort saisi le vif" was the sole manner of devolution of real estate within England and Wales prior to the Land Transfer Act of 1897, which first introduced the concept of a Real Representative at its s.1. Unlike the larger Islands to its North, Jersey has retained that now enviable procedure for immovables abroad.

Whilst an executeur testamentaire can be appointed if wished and needed over French immovable assets, executors acting under a Will of a Jersey resident domiciliary in the Island  generally tend not to get probate over foreign movables, unless necessary for practical reasons  but otherwise leave the issue of transfer to the heirs to work out under the lex situs. The appointment of a French executeur testamentaire is not prohibited to facilitate the administration of the French ancillary succession in the ancillaryrules of the Regulation as will be applied within the EU.

So the best method of dealing with this will generally be a separate will for both French immovables and movables, whether based upon habitual residence at death in Jersey, or if appropriate upon a choice of the law of nationality under article 22 of the Regulation. However there will be issues as to the unitary concept applied under the Regulation which does not accept that an international succession can be governed by several laws, merely by one.  Here I suggest that after a suitably detailed analysis, a British citizen resident in the Channel Islands might be in a position to deploy the law of his nationality as being that of a Bailiwick, not that of another jurisdiction of the United Kingdom, as Nationality is not only a question of place of birth but also of a parent.  Each case need to be considered upon its merits if the option is to be used.

I find it a pity that such Norman simplicity is relegated to the irrelevancy of  unavailability elsewhere in the United Kingdom, but I am raising this point here as I am aware that many Trust companies and advocates in Jersey follow Linked In. These are the only professionals who are permitted under the Bailiwick's legislation to act as executors and apply for probate in Jersey.  It also demonstrates why I have been commenting  as I have been on the English Court's jurisdiction over executors and the restrictions on their powers as a territorial issue.

I might suggest that Jerseymen and women living in but not yet domiciled in the United Kingdom with assets in France consider the use of the nationality option to invoke this facility for French assets, designating Jersey as the subordinate law of their nationality and attempt to ensure that insofar as the EU is concerned, that law is the only one applied.  As a Barrister practicing in the Island I can assist anyone wishing assistance in this, as can any advocate here.

Advocates in Guernsey and the Isle of Man might wish to comment on this issue from their islands' perspectives.