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Legal certainty and predictability in international succession law
Abstract
The paper examines legal certainty and predictability in the context of the youngest field of EU private international law–succession law. The author looks at the extent to which the provisions of the EU Succession Regulation provide for legal certainty and predictability in enabling EU citizens to plan their international estates in advance. The paper critically examines selected concepts of the EU Regulation from the perspective of legal certainty: (a) the current state of the concept of habitual residence of the deceased that is the key connecting factor in the Succession Regulation, (b) party autonomy for the testator, (c) escape clauses, (d) the conflict of laws treatment of incidental questions and (e) lifetime gifts and clawback. The conclusion of the paper is that although the Succession Regulation is designed to offer legal certainty, it does not achieve it in all cases, unless the testator actively exercises the party autonomy that it offers.
... Serebrovsky [2], B.S. Antimonov [3], etc.). Its main provisions boil down to the fact that the hereditary mass is an inseparable unity of the rights and obligations of the testator and passes to one or more heirs as a whole without first transferring them as an intermediate stage to any person, i.e. directly [4][5][6][7]. ...
The institution of succession is a complex system of constructs. Depending on the method of organization and construction of the whole from the constituent parts, different variations of the design of hereditary legal succession are observed. In turn, modern socio-economic conditions significantly accelerate a person’s life cycle, which draws increased atten-tion to their rights and obligations, which will be transferred by legal succession to other per-sons – heirs. Therefore, the main goal of the article is to conduct a comprehensive study of the institution of succession in the civil law of Ukraine through the lens of theoretically substanti-ated issues in the context of the qualitative transformations of the relevant legal relations and their legal regulation. To achieve this goal, the author used the laws and categories of dialectics, formal and logical techniques, means of hermeneutics. The general methodological basis of the article was the dialectical method of cognition. As a result of the study, the author ascertained the limitation of the role of the family support function in the succession law of Ukraine and the development of the concept of a singular succession therein. The author substantiates the con-clusion that the legal succession of certain objects of civil law is either not subject to civil law regulation at all, or confirms that the singular nature of inheritance of objects of civil law is inherent in succession law. The author also performed a research of universal and singular succession through the lens of their genesis from legal regulation of the times of Ancient Rome to today. As a result of a comprehensive analysis, the most pressing issues in the field of succes-sion in civil law of Ukraine were outlined, which require their gradual and balanced solution by consolidating the efforts of representatives of the doctrine and practice in order to unify, update, and as a result – qualitatively reform the legal regulation of the institution of hereditary legal succession in Ukraine in the context of the positive experience of other states and its gradual testing at the national level
... Serebrovsky [2], B.S. Antimonov [3], etc.). Its main provisions boil down to the fact that the hereditary mass is an inseparable unity of the rights and obligations of the testator and passes to one or more heirs as a whole without first transferring them as an intermediate stage to any person, i.e. directly [4][5][6][7]. ...
. The institution of succession is a complex system of constructs. Depending on the method of organization and construction of the whole from the constituent parts, different variations of the design of hereditary legal succession are observed. In turn, modern socioeconomic conditions significantly accelerate a person's life cycle, which draws increased attention to their rights and obligations, which will be transferred by legal succession to other persons heirs. Therefore, the main goal of the article is to conduct a comprehensive study of the institution of succession in the civil law of Ukraine through the lens of theoretically substantiated issues in the context of the qualitative transformations of the relevant legal relations and their legal regulation. To achieve this goal, the author used the laws and categories of dialectics, formal and logical techniques, means of hermeneutics. The general methodological basis of the article was the dialectical method of cognition. As a result of the study, the author ascertained the limitation of the role of the family support function in the succession law of Ukraine and the development of the concept of a singular succession therein. The author substantiates the conclusion that the legal succession of certain objects of civil law is either not subject to civil law regulation at all, or confirms that the singular nature of inheritance of objects of civil law is inherent in succession law. The author also performed a research of universal and singular succession through the lens of their genesis from legal regulation of the times of Ancient Rome to today. As a result of a comprehensive analysis, the most pressing issues in the field of succession in civil law of Ukraine were outlined, which require their gradual and balanced solution by consolidating the efforts of representatives of the doctrine and practice in order to unify, update, and as a result-qualitatively reform the legal regulation of the institution of hereditary legal succession in Ukraine in the context of the positive experience of other states and its gradual testing at the national level.
... Most commentators suggest that the EU law on civil judicial cooperation works effectively and successfully in facilitating cross-border activities. 18 As the UK's largest trading partners, in 2016, 44% of UK exports went to the EU and 53% of all UK imports came from the EU. 19 In terms of employment, there were estimated 2.37 million people from other EU Member States (EU27) were employed in the UK between April and June 2017. ...
In the past forty years, the EU has established a very successful and effective civil judicial cooperation scheme that applies to reduce barriers caused by coexistence of different legal systems to smooth cross-border activities and transactions in the single market. This scheme would cease being effective between the UK and other EU Member States after Brexit. The UK government has proposed that the optimal option is to establish a special partnership with the EU to maintain the existing cooperation after Brexit, which is not ecoed by the EU. This article aims to explore the feasibility of establishing such a future partnership in civil judicial cooperation and to examine the existing models that may be followed by the UK. It suggests that neither the Denmark model nor the Lugano II model would work effectively and recommends a unique 'UK model' to establish the future UK-EU civil judicial cooperation partnership.
The EU Succession Regulation constitutes a remarkable achievement of unification of conflict of law rules at the European level. It has importantly changed the landscape for all those interested in succession law, in particular, the notaries and theestate planning practitioners. The present article takes up a number of selected issues that arise under the Regulation. The paper first identifies certain general difficulties that result either from the complex nature of the matters addressed or from a somewhat ambiguous wording of the rules adopted by the EU legislator. The attention is devoted to the exceptions to the principle of the unity of legis successionis, the dispositions upon death, and the intertemporal questions resulting from the change of the conflict of laws rules in the Member States which occurred on 17th August 2015 when the Regulation started to be applied. The paper then moves to some of the more specific issues arising under the Regulation. To that effect, it first looks at the Polish Act of 2018 governing the ”succession administration” of the enterprise, which forms part of the estate. The argument is made that the rules contained in the 2018 Act should be applied by virtue of Article 30 of the Succession Regulation because they constitute “special rules” in the meaning of this provision. Second, the notion of a “court” under Article 3(2) of the Regulation is discussed in light of the recent judgment of the CJEU in case C-658/17 WB, where the European Court found that a Polish notary issuing the deed of certification of succession is not a “court” for purposes of Article 3(2). The paper provides a critical account of the Court’s decision.
Need of private international law arises because the internal laws of different countries differ from each other. If the internal laws of the countries of the world lay down uniform rules, then probably there will not be any need for private international law. But then, difference is not only in the internal laws of the different countries, but also in the private international laws of different countries, on account of which sometimes conflicting decisions are pronounced by the courts of different countries on the same matter. Thus, need for Unification of Private International law Rules arise.
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