Brexit And Private Client Issues

Brussels IV

Brexit has had at least one silver lining. We will (post-Brexit) finally have some certainty as to how the UK is treated under Brussels IV.

Since Brussels IV, also known as the EU succession regulation, first came on the scene there has been debate as to whether the UK is a "member state" or a "third state". The ambiguity arose because the UK decided to opt out of the regulation, but the drafting of the regulation did not make clear whether a reference to a "member state" was a reference to an EU Member State or merely to those states that had opted in to Brussels IV.

The purpose of Brussels IV was to give clarity as to how a testator's estate should be administered and, so far as possible, harmonise the country of jurisdiction and the country governing the applicable law. This is where the distinction between a member state and a third state becomes important.

Under Article 4, the court of the deceased's habitual residence has jurisdiction by default in all succession matters. Under Article 21, the law of the deceased's habitual residence will be the applicable law.

However, under Article 22 it is possible to elect for the law of your nationality to apply as the applicable law. This can be either a member state or a third state. If that nationality is a member state under Brussels IV, then this will also be accepted by other member states as the jurisdiction if any of the requirements in Articles 5 - 7 are fulfilled, mainly that:

The parties have agreed in writing that the court of nationality should have jurisdiction (and court of habitual residence has declined jurisdiction); or The court of habitual resident has exercised discretion to decline jurisdiction at the request of one of the parties, on the grounds that the court of nationality is better placed to decide on succession; or The parties have expressly accepted the jurisdiction of nationality. Currently it is considered by many commentators that the UK is not a member state for these purposes, but a third state; this position will be certain post-Brexit. This means that when an election is made for the UK as the applicable law, jurisdiction will still lie with the country of habitual residence or another member state which is connected to the estate (see below re Article 10).

Article 34 adds further complexities. Where the applicable law is a third state (such as, post-Brexit, the UK), this will include that third state's private international laws insofar as they make...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT