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.