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Succession Regulation evaluation questionnaire for notaries
Introduction

This questionnaire has been developed in the framework of the MAPE Succession project. The project aims to monitor and evaluate how the Succession Regulation (EU) No 650/2012 is applied and to provide qualitative and quantitative information and analysis on its functioning and impact on notaries and citizens in 22 civil law EU Member States (MS), where successions are settled mostly amicably by notaries. The establishment of monitoring and evaluation methodologies and their extrapolation and potential use on other similar legislative instruments would contribute, in the long term, to the EU judicial culture. and to increasing adequacy in EU law implementation by legal professionals. The project’s findings and related solutions could contribute to an improvement in the law application even before 2025 or could constitute a basis for proposals for improvement originating from the practice after 2025. Therefore, we ask you to sacrifice only few minutes of your time in order to contribute to the improvement of the law application.

Notice to users

The data collected will be processed in accordance with the legislation in force. At no time the information collected will be linked to the identity of the respondent.

In this questionnaire, the ‘Regulation’ refers to the Succession Regulation adopted in 2012 by the European Union (Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of judgments and the acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession).

We hope you will answer all the questions asked. However, you may choose not to answer certain questions. To do so, you can go to the following questions.

I - Screening question - self-assessment

In order to make better use of the results of the questionnaire, the responses will be analysed in a comprehensive manner, by country, but also taking into account the level of activity in private international law of each person participating in the survey. To do so, you are asked to carry out a brief self-assessment in advance of the questionnaire itself.

How would you describe your practice in private international law of successions?
II - Scope and general issues

The Regulation applies to “the succession of deceased persons” (art. 1, para. 1). A number of issues are excluded from the scope of the Regulation. These exclusions may give rise to hesitation. At the same time, there is little precise information on the number of successions with a cross-border dimension.

1. Have you already taken any training, courses or other workshops on the Succession Regulation?
Did you find this training useful?
Would you like to take a training, course or workshop on the Succession Regulation?
2. Have you ever applied the Succession Regulation?
How often?
Please explain your answer using one of the following:
3. In relation to the total number of succession cases in your office, what is the proportion of successions involving a cross-border element (assets abroad, residence of the deceased abroad, foreign nationality of one of the persons concerned etc.)?
4. In your office, in succession cases with assets abroad, what is the proportion of cases where assets are wholly located in the European Union?
5. Have you ever had doubts in a succession case about the applicability of the Regulation to the succession?
These doubts were related to:
6. Have you ever used a support mechanism, such as the European Notarial Network, to overcome a difficulty in a specific case?
Was it helpful to you?
For what reason?
7. Do you know the European Directory of Notaries?
Have you ever used the European Directory of Notaries to find a fellow notary?
III - Jurisdiction

Chapter 2 of the Regulation contains a number of rules of jurisdiction. Under this Regulation, the courts of the Member State where the deceased habitually resided have general jurisdiction (Article 4). If the deceased’s habitual residence was not situated in a Member State, the courts of the Member State in which the assets of the succession are situated may exercise their jurisdiction, provided that certain conditions are met (Article 10). If the deceased has made a choice of law, the heirs may agree to grant exclusive jurisdiction to the courts whose law has been chosen.

1. If the deceased has chosen his national law to govern his succession, the parties concerned may agree that the courts of that Member State have exclusive jurisdiction to rule on that succession. Have you ever encountered such a jurisdiction clause?
2. Would you consider it useful for the heirs to be able to agree on the competent court in the absence of a choice of succession law?
3. Would you consider it useful if the deceased during his lifetime could choose the competent court?
4. Have you ever been confronted with parallel succession proceedings in two Member States?
a) Would it be useful to have a European register for the opening of succession proceedings?
b) Is there a national register for the opening of succession proceedings in your country?
Would you consider it useful for this register to be interconnected with the registers of other Member States?
IV - Applicable law
(1) Applicable Law: choice of law

Article 22 of the Regulation provides that 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”.

1. Have you ever advised a choice of the law applicable to the succession to a client?
In what situation?
2. Have you ever received a choice of the law applicable to the succession made by a client?
a) Have you ever received a choice of the law applicable to the succession in favour of a law other than yours?
Would you agree to receive an act with a choice of law in favour of a foreign law?
b) Why?
3. Does it seem useful to introduce a possibility of agreement between the heirs and, where appropriate, the legatees, as regards the law applicable to the succession?
4. Have you ever come across an implicit choice of law in a succession (choice not expressly formulated, but resulting from the terms of a disposition mortis causa, Art. 22.2)?
What were the elements that enabled you to conclude that there was a choice of law?
5. Have you ever found the existence of a law deemed to have been chosen in accordance with art. 83.4?
Did you find it difficult to determine whether the disposition mortis causa was drafted in accordance with the law that the deceased could have chosen?
(2) Applicable Law: lack of choice of law

According to art. 21 of the Regulation, successions are governed, by default, by the law of the State in which the deceased had his habitual residence at the time of death. However, if 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 of his last habitual residence, the law applicable to the succession is the one of that other State.

1. Have you ever experienced difficulties in identifying the deceased’s last habitual residence?
In which situation(s)?
How did you overcome the difficulty?
Which factors did you take into account in determining the habitual residence?
Do you consider that you have sufficient instruments to have access to evidence that may be relevant to determining habitual residence?
2. Would you consider it useful if a definition of the deceased’s last habitual residence at the time of death was included in the regulation?
Would you prefer an objective definition that does not take into account the will of the deceased or a definition that takes into account all the circumstances of the deceased’s life in the years preceding the death, including the intention of the deceased?
3. Have you already applied the safeguard clause of Article 21.2: ‘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.’
Was it in favour of the national law of the deceased?
In which circumstance(s)?
(3) Difficulties in the application of the designated law

The Regulation provides for a number of rules that deviate from the normal result. The most important exception is the public policy provision, which makes it possible to refuse the application of a provision of the law of a State “if such application is manifestly incompatible with the public policy (ordre public) of the forum.” (Article 35). Article 34 of the Regulation provides for a certain possibility of “renvoi” if the rules of the Regulation lead to the application of the law of a third State.

1. Have you ever applied a foreign law (such as the national law of the deceased) to settle a succession?
Have you encountered difficulties in accessing the content of a foreign law?
How did you get access to the content of a foreign law?
2. Have you ever applied the international public policy exception clause in order to rule out a foreign law in principle applicable?
Was the rejected law the law of a Member State of the European Union or the law of a third country?
For what reason(s)?
V - Authentic instruments

Chapter V of the Regulation provides for a number of rules to facilitate the circulation of authentic instruments among Member States. Article 59 provides that authentic instruments drawn up in a Member State shall have the same evidentiary effects in the other Member States as in the State of origin. Article 60 allows to declare enforceable an authentic instrument which is enforceable in the Member State in which it was issued.

1. Can an authentic instrument issued in another Member State be published in your country’s land registers?
2. Does it seem useful that an authentic instrument issued in your Member State can easily be published in a land register of another country (such as Grundbuch etc.)?
3. Have you been aware of a situation where the public policy of the Member State of enforcement has been used to refuse or revoke a declaration of enforceability of an authentic instrument (Article 60.3)?
Which one?
4. Have you been aware of a situation in which an authentic instrument issued by a Member State was incompatible with a decision adopted by a court of a Member State having jurisdiction on the basis of the Regulation?
VI - European Certificate of Succession

Chapter VI of the Regulation creates a European Certificate of Succession. The European Certificate of Succession, which is not intended to replace existing instruments provided by national law, is a document issued at the request of an authority after examining the circumstances of the case. The certificate is intended to facilitate the procedures of heirs, legatees, executors and administrators by enabling them to demonstrate their status and/or rights in other Member States.

1. Have you ever issued a European Certificate of Succession?
a) How often?
b) How long does it take on average from the moment the application is received until the European Certificate of Succession is issued?
c) Have you published it in a register of successions / last will dispositions?
Why?
d) Have you ever requested information held in the registers of another State (land register, civil registry, registers of documents and facts relevant to the succession, or to the matrimonial property regime or equivalent property regime) pursuant to article 66.4?
Were the answers given to you useful?
Why?
e) Did you find it difficult to obtain information from financial institutions?
f) On average, how many copies do you issue for an original European Certificate of Succession?
g) Do you keep a register of persons to whom a certified copy is issued?
Is this register in paper or in digital form?
Would a model of a standard register be useful to you?
h) Has it been necessary to extend the validity of the certified copies issued or to issue a new certified copy?
How often?
i) Have you already corrected, amended or withdrawn a European Certificate of Succession (art. 71)?
Did you find it difficult to inform those who had been issued certified copies?
How did you inform the persons who were issued certified copies?
j) Why?
Have you ever been involved in the preparation of a European Certificate of Succession?
a) How often?
b) Have you ever requested information held in the registers of another State (land register, civil registry, registers of documents and facts relevant to the succession, or to the matrimonial property regime or equivalent property regime) pursuant to article 66.4?
c) Did you find it difficult to obtain information from financial institutions?
2) Have you ever refused to issue the European Certificate of Succession requested to you?
Why?
3) Have you ever been submitted a European Certificate of Succession issued in another Member State?
Did you face any difficulty in understanding it?
4) Does the automatic recognition of the effects of the European Certificate of Succession appear to you to be effective?
a) What are the main bodies, entities that oppose the recognition of its effects?
b) What are the reasons for this lack of recognition?
5) Have you ever queried a national register of European Certificate of Succession?
a) Did the query seem simple to you?
b) Why?
6) Have you ever faced a contradiction between a national certificate and a European Certificate of Succession?

This questionnaire has been designed as part of the project « Monitoring and Evaluating the application of the Succession Regulation EU 650/2012 - MAPE Successions » co-founded by the European Union's Justice Programme JUST-JCOO-AG-2020, under grant agreement 10100742