EUROPEAN CERTIFICATE OF SUCCESSION.

Abstract

Globalization and migratory movements inside the EU have led to the adoption on 4th July, 2012 of Regulation 650/201 by the European Parliament and the Council 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 present study examines only the European Certificate of Succession. The Certificate is adopted respecting the principle of subsidiarity. The unification of the law in matters of succession of the different Member States is not sought, but its harmonisation, so that the European Certificate of Succession can coexist with national deeds of succession. The concept of the certificate, based on the German Erbschein, and its effectiveness are studied. Respect for the lex rei sitae in rights in rem and Land Registry issues is examined in detail, both in the admission of the limited number (numerus clausus) of rights in rem, as in their adaptation to foreign Laws. Safeguarding of national laws clearly requires an internal control of the certificate by the Land Registrar to whom access is sought for the formal examination of the title deeds and respect for the institutions as legitimate and for public order. It is assumed that the certificate demonstrates its content, although the contrary may be proved, unlike what happens with the principle of public trust in registration. Thus presumption granted to acts performed by the certificate holder is not comparable to the third party mortgage protected by the Land Registry. The full effectiveness of Article 28 of the Spanish Mortgages Act in favor of the apparent heir is also examined.